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STUART F. DELERYActing Assistant Attorney GeneralANDRE BIROTTE JR.United States Attorney
JUDRY L. SUBAR
Assistant Branch DirectorELISABETH LAYTONSenior CounselKAREN S. BLOOMTrial AttorneyU.S. Department of JusticeCivil DivisionFederal Programs Branch20 Massachusetts Ave., N.W.Washington, DC 20001T: (202) 514-3183; F: (202) 616-8470
Email: [email protected]
Attorneys for Defendants
UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA
GREGORY VALENTINI, et al.,
Plaintiffs,
v.
ERIC SHINSEKI, et. al.,
Defendants.
))
)))))))))
Case No. 11-CV-04846 SJO MRWx)DEFENDANTS NOTICE OFMOTION AND MOTION FORSUMMARY JUDGMENT;MEMORANDUM OF POINTS ANDAUTHORITIES AND SUGGESTIONOF LACK OF JURISDICTION
[NO HEARING DATE SET][Before the Honorable S. JamesOtero]
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NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT
PLEASE TAKE NOTICE that pursuant to the Courts February 13, 2013
Order (ECF No. 111), Defendants Eric Shinseki, Secretary of the Department of
Veterans Affairs (VA), and Donna M. Beiter, Director of the VA Greater Los
Angeles Healthcare System, by and through their undersigned counsel, hereby
move the Court for summary judgment pursuant to Federal Rule of Civil Procedure
56(a). This motion is based on the attached Memorandum of Points and
Authorities and Suggestion of Lack of Jurisdiction, the Declaration of Elisabeth
Layton, the Administrative Record previously filed (ECF Nos. 96, 98, 112, 115),
and such other and further arguments and grounds as may be advanced in the
future.
This motion is made following a conference of counsel as required by Local
Rule 7-3, which took place on March 22, 2013.
No hearing has been set in accordance with the Courts Order of February
13, 2013 (ECF No. 111). Should the Court require a hearing, a date will be set by
the Court.
Dated: April 10, 2013 Respectfully submitted,
STUART F. DELERYActing Assistant Attorney GeneralANDRE BIROTTE JR.United States Attorney
LEON W. WEIDMANChief, Civil DivisionALARICE M. MEDRANOAssistant United States AttorneyJUDRY L. SUBARAssistant Branch Director
By: /s/ Elisabeth Layton
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ELISABETH LAYTONSenior CounselKAREN S. BLOOMTrial AttorneyU.S. Department of Justice
Civil DivisionFederal Programs Branch20 Massachusetts Ave., N.W.Washington, DC 20001T: (202) 514-3183; F: (202) 616-8470Email: [email protected]
Attorneys for Defendants
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Case No. 11-cv-04846Memorandum in Support of Defendants Motion for Summary Judgment page i
TABLE OF CONTENTS
Page
INTRODUCTION ..................................................................................................... 1
FACTUAL AND PROCEDURAL BACKGROUND .............................................. 2
ARGUMENT ............................................................................................................. 3
I. VAS ACTIONS ARE UNREVIEWABLE BECAUSE THEY ARECOMMITTED TO AGENCY DISCRETION ..................................... 3
A. The Language of 8153 Shows The Decisions to Enter ESAs AreCommitted To VAs Discretion. ................................................ 6
B.. The Statutory Framework and Legislative History Show VADecisions to Enter ESAs Are Committed to VAs Discretion. .. 8
C. ESA Decisions Are Typical of Actions Committedto Agency Discretion. ................................................................. 10
II. EVEN IF VAS DECISIONS ARE REVIEWABLE, THEY DO NOTVIOLATE THE EPA. .......................................................................... 12
A. VA Acted In Accordance With Law In Entering Into MedicalSpace Sharing Agreements at its WLA Campus. ...................... 13
1. VAs Reading of Section 8153 Must Be AccordedDeference ............................................................................. 14
2. VAs Interpretation Of Its Authority Under 8153 IsPermissible. ........................................................................... 16
B. VAs Decisions To Enter ESAs Are Supported by theAdministrative Record, Which Shows That Decisions WereRationally Based On Relevant Factors. ..................................... 21
CONCLUSION ......................................................................................................... 24
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Case No. 11-cv-04846 Memorandum in Support of Defendants Motion for Summary Judgment ii
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TABLE OF AUTHORITIES
CASES PAGE(S)
Akiak Native Cmty v. U.S. Postal Serv.,
213 F.3d 1140 (9th Cir. 2000) ...............................................................................21
Alaska Dep't of Envtl. Conserv. v. EPA,
540 U.S. 461 (2004) .............................................................................................. 12
Am. Fed'n of Gov't Empls. v. Brown,
680 F.2d 722 (11th Cir. 1982) ...............................................................................16
Arent v. Shalala,
70 F.3d 610 (D.C. Cir. 1995) ................................................................................ 14Barnhart v. Walton,
535 U.S. 212 (2002) .............................................................................................. 15
Beno v. Shalala,
30 F.3d 1057 (9th Cir. 1994) ...................................................................................6
Cape Cod Hosp. v. Sebelius,
630 F.3d 203 (D.C. Cir. 2011) ....................................................................... 19, 20
Chevron U.S.A., Inc. v. Nat'l Res. Def. Council,
467 U.S. 837 (1984) ....................................................................................... 14, 15
County of San Francisco v. United States,
443 F. Supp. 1116 (N.D. Cal. 1977) .....................................................................12
Drakes Bay Oyster Co. v. Salazar,
No. 12-cv-06134-YGR, 2013 WL 451860 (N.D. Cal. Feb. 4, 2013) ...................11
E.J. Friedman Co. v. United States,
6 F.3d 1355 (9th Cir. 1993) .................................................................................4, 6
Ellison v. Connor,
153 F.3d 247 (5th Cir. 1998) ...................................................................................7
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Case No. 11-cv-04846 Memorandum in Support of Defendants Motion for Summary Judgment iii
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Forsyth Cnty. v. Army Corps of Eng'rs,
633 F.3d 1032 (11th Cir. 2011) ............................................................................... 7
Gibbons v. Fronton,
533 F. Supp. 2d 449 (S.D.N.Y. 2008) ..................................................................11
Haig v. Agee,,
453 U.S. 290 (1981) .............................................................................................. 18
Harkonen v. United States Dep't of Justice,
No. C12-629 CW, 2012 WL 6019571 (N.D. Cal. Dec. 3, 2012) ............................ 5
Heckler v. Chaney,
470 U.S. 821 (1985) ..................................................................................... 4, 5, 10
Helgeson v. Bureau of Indian Affairs,
153 F.3d 1000 (9th Cir. 1998) .............................................................................5, 8
Johnston Oyster Co. v. Malcom Baldridge,
704 F.2d 1060 (9th Cir. 1983) ...............................................................................12
Levine v. Vilsack,
587 F.3d 986 (9th Cir. 2009) ...................................................................................4
Lincoln v. Vigil,
508 U.S. 182 (1993) .............................................................................................. 10
Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992) ................................................................................................4
Managed Pharmacy Care v. Sebelius,
705 F.3d 934 (9th Cir. 2012) .................................................................... 12, 16, 21
Marmolejo-Campos v. Holder,
558 F.3d 903 (9th Cir. 2009) ................................................................................. 17Marsh v. Or. Natural Res. Council,
490 U.S. 360 (1989) .............................................................................................. 12
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Case No. 11-cv-04846 Memorandum in Support of Defendants Motion for Summary Judgment iv
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Morales-Izquierdo v. Gonzales,
486 F.3d 484 (9th Cir. 2007) ................................................................................. 21
Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto Ins. Co.,
463 U.S. 29 (1983) ................................................................................................ 12
Natl Parks & Conservation Assn v. U.S. Dep't of Transp.,
222 F. 3d 677 (9th Cir. 2000) ................................................................................13
Nat'l Wildlife Fed'n v. Burford,
871 F.2d 849 (9th Cir. 1989) ................................................................................. 23
Northwest Ecosystem Alliance v. U.S. Fish & Wildlife Serv.,
475 F.3d 1136 (9th Cir. 2007) ...............................................................................13
Occidental Eng'g Co. v. INS,
753 F.2d 766 (9th Cir. 1985) ...................................................................................3
Pac. NW. Generating Coop. v. Bonneville Power Admin.,
596 F.3d 1065 (9th Cir. 2010) ................................................................................. 5
Pinnacle Armor Inc., v. United States,
648 F.3d 708 (9th Cir. 2011) ...................................................................................5
Pritkin v. Dep't of Energy,
254 F.3d 791 (9th Cir. 2001) ...................................................................................4
Rank v. Nimmo,
677 F.2d 692 (9th Cir. 1982) ............................................................................ 6, 14
Rapanos v. United States,
547 U.S. 715 (2006) .............................................................................................. 21
Rapides Reg'l Med. Center. v. Sec'y, Dep't of Veterans Affairs,
974 F.2d 565 (5th Cir. 1992) ...................................................................................8Pharm. Research & Mfrs. of Am. v. Thompson,
259 F. Supp. 2d 39(D.D.C. 2003);. ................................................................ 15, 20
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Case No. 11-cv-04846 Memorandum in Support of Defendants Motion for Summary Judgment v
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Sierra Club v. Mainella,
459 F. Supp. 2d 76 (D.D.C. 2006) .......................................................................... 3
Skidmore v. Swift & Co.,
323 U.S. 134 (1944) .............................................................................................. 16
Solid Waste Agency of N. Cook Cnty. v. Army Corps,
531 U.S. 159 (2001) .............................................................................................. 21
Strickland v. Morton,
519 F.2d 467 (9th Cir. 1975) ...................................................................... 9, 10, 12
Topgallant Group., Inc. v. United States,
704 F. Supp. 265 (D.D.C. 1998) ........................................................................... 11
U.S. v. Riverside Bayview Homes, Inc.,
474 U.S. 121 (1985) .............................................................................................. 21
United States v. Mead,
533 U.S. 218 (2001) .............................................................................................. 16
Webster v. Doe,
486 U.S. 592 (1988) ............................................................................................5, 7
STATUTES
5 U.S.C. 701 ............................................................................................................. 4
5 U.S.C. 706 ............................................................................................... 1, 12, 14
38 U.S.C. 8101 ........................................................................................................ 9
38 U.S.C. 8151 ............................................................................................passim
38 U.S.C. 8153 ..............................................................................................passim
38 U.S.C. 8161 ........................................................................................................ 2
38 U.S.C. 8162 ........................................................................................................ 2
38 U.S.C. 1718, 2013(a)(3) .................................................................................22
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Case No. 11-cv-04846 Memorandum in Support of Defendants Motion for Summary Judgment vi
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REGULATIONS
38 CFR 17.142 ......................................................................................................... 15
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MEMORANDUM OF POINTS AND AUTHORITIES ANDSUGGESTION OF LACK OF JURISDICTION
INTRODUCTION
The United States Department of Veterans Affairs (VA) operates one of
the largest health care systems in the country. To support its mission, VA has a
large inventory of real property that includes the land on which VA medical
centers (VAMCs), operated by VAs Veterans Health Administration (VHA),
are located. In 1996, Congress significantly expanded the ways in which VA could
use real property controlled by VHA, by authorizing the Secretary, under 38
U.S.C. 8151-53, to, at his discretion, enter into sharing agreements that allow
other entities to share or use VA land and space, if the Secretary determined thatsuch agreements are in the best interests of the VA medical care program.
Congress gave VA this sharing authority to strengthen the medical programs at its
facilities, and improve the quality of care provided to Veterans, with revenue
generated through such agreements credited to the sharing VA facilities medical
accounts. 38 U.S.C. 8151, 8153(b).
Plaintiffs, who describe themselves as Veterans with severe mental
impairments and/or brain injuries, have sued under the Administrative Procedure
Act (APA), 5 U.S.C. 706(2), seeking an order vacating existing agreements to
share space on VAs West Los Angeles (WLA) medical center campus. The
APA does not permit such challenges to proceed. Where, as here, Congress has
committed an agency action to the agencys discretion, judicial review is not
available. Therefore, Plaintiffs APA claim must fail. Even if the Court could
review Plaintiffs claim, it should be denied because VAs decisions to enter into
these sharing agreements were not arbitrary and capricious or contrary to law.
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GLA from executing under 38 U.S.C. 8151-8153 (the statutes that authorize
enhanced sharing agreements) any agreements that do not concern the sharing of
health-care resources.Id. at 6 (citing FAC Req. for Relief).3
The Court
apparently understands Plaintiffs to be trying to challenge VAs decisions to enter
certain ESAs on the WLA campus.4
Plaintiffs pleadings to date suggest that their
challenge is even narrower: Plaintiffs do not appear to have identified any basis
for their challenge other than contending that the land at issue is not a health-care
resource under 38 U.S.C. 8151-53 and that at least some of the ESAs do not
benefit Veterans.
ARGUMENT
I. VAS ACTIONS ARE UNREVIEWABLE BECAUSE THEY ARECOMMITTED TO AGENCY DISCRETION
A court conducting APA judicial review determines whether or not as a
matter of law the evidence in the administrative record permitted the agency to
make the decision it did. Occidental Engg Co. v. INS, 753 F.2d 766, 769 (9th
Cir. 1985).
5
[B]efore any review at all may be had [under the APA], though, a
3Plaintiffs do not specify which agreements they allege do not concern the
sharing of health-care resources. FAC Req. for Relief;see generally FAC 311-15.4 See Order Granting In Part & Denying In Part Pls. Mot. To Supplement the
Administrative R. (Order Supp. AR) Jan. 22, 2013 (ECF No. 108) (addressingscope of administrative record); and the Administrative Record (AR), assupplemented. Defs. Notice of Filing Administrative R., Oct. 22, 2012 (ECF No.96); Defs. Notice of Filing Suppl. to Administrative R., Nov. 20, 2012 (ECF No.98); Defs. Notice of Filing Supp. to Administrative R., Feb. 19, 2013 (ECF No.
112). In addition, Defendants are filing concurrently with their summary judgmentmotion additional pages of documents that VA recently determined should beincluded in the administrative record. See Defs. Notice of Filing Supp. toAdministrative R.(filed herewith) (ECF No. 115).5
Where an agency action is upheld in an APA challenge, summary judgment isappropriately entered for defendants. Sierra Club v. Mainella, 459 F. Supp. 2d 76,90 (D.D.C. 2006); Pinnacle Armor v. United States, No. 1:07-cv-01655, LJO DLB,2012 WL 5307666 (E.D. Cal. Oct. 26, 2012).
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party must first clear the hurdle of [5 U.S.C.] 701(a). Heckler v. Chaney, 470
U.S. 821, 828 (1985).6 In relevant part, that section of the APA precludes review
over agency action [that] is committed to agency discretion by law. 5 U.S.C.
701(a)(2);Heckler, 470 U.S. at 828, 830, 843. APA claims can only proceed
against the government, which otherwise enjoys sovereign immunity from suit, to
the extent the APA waives the governments sovereign immunity. Therefore, when
a challenged action falls within 701(a)(2)s exception to APA review for actions
committed to an agencys discretion, the APAs waiver of sovereign immunity
does not extend to that claim, and the court, therefore, lacks subject matter
jurisdiction over the matter and must dismiss such a claim. See e.g., E.J. FriedmanCo. v. United States, 6 F.3d 1355, 1359 (9th Cir. 1993).
7
6Also before any review may be had, Plaintiffs must establish that they have
standing. Pritkin v. Dept of Energy, 254 F.3d 791, 796-97 (9th Cir. 2001). Whilethis Court, in considering Defendants Motion to Dismiss, found that Plaintiffs hadadequately pled standing, the burden for establishing standing is more rigorous atthe summary judgment stage of a case than at the motion to dismiss stage.Lujan v.
Defenders of Wildlife, 504 U.S. 555, 561 (1992). Moreover, the Courts holdingseems based on its understanding that Plaintiffs APA claim challenged VAsharing space pursuant to ESAs, as opposed to EULs. Order on MTD n.5(Plaintiffs injury is connected to the DVAs affirmative act to enter into land-useagreements pursuant to ESAs instead of EULs). In subsequent orders, though, theCourt has seemed to understand the APA claim as a broader challenge to thelawfulness of WLA ESAs. See Order Granting in part & Denying in partDefs.Mot. for Recons. (Order on Recons.) 7, June 19, 2012 (ECF No. 87).Plaintiffs do not have standing to bring such a claim because they suffered nodirect injury from the allegedly unlawful agreements, and, even if they hadsuffered such injury, no judicial declaration could redress it.Lujan, 504 at 560-61.The Court acknowledged as much when it noted that If Plaintiffs prevail on thisclaim and the existing land-use agreements are deemed unlawful, Plaintiffscertainly hope that this land will be used to construct permanent supportinghousing for their benefit. But . . . Plaintiffs recognize that if the existing land useagreements are determined to be unlawful, the Government could choose to use the
land for any lawful purpose, and the Government might notchoose to use the landto create permanent supportive housing.) Order on Recons. 7. (emphasis added).Such an attenuated claim cannot establish Plaintiffs standing at this stage of thecase. See Levine v. Vilsack, 587 F.3d 986, 993 (9th Cir. 2009) (even confiden[t]speculation rejected in standing analysis).7
A federal court can always consider whether it has subject matter jurisdiction,see Fed. R. Civ. P. 12(h)(3), and the Ninth Circuit on multiple occasions hasaddressed the committed to agency discretion exception to the APA in thecontext of summary judgment rulings. See, e.g., Strickland v. Morton, 519 F.2d
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Although the exception from APA review applying to acts committed to
agency discretion is a narrow one, it applies where, as here, statute[s are] drawn
in such broad terms that in a given case there is no law to apply,Pac. NW.
Generating Coop. v. Bonneville Power Admin., 596 F.3d 1065, 1075 n.7 (9th Cir.
2010) (citingHeckler, 470 U.S. at 830), thereby leaving the court with no
meaningful standard against which to judge the agencys exercise of discretion.
Pinnacle Armor Inc., v. United States, 648 F.3d 708, 719 (9th Cir. 2011) (citing
Heckler, 470 U.S. at 830).
In evaluating whether a statute is so drawn, courts look to the language of
the statute itself, its overall structure, and whether it involves an area of executiveaction in which the courts have been hesitant to intrude. Webster v. Doe, 486 U.S.
592, 601 (1988);Helgeson v. Bureau of Indian Affairs, 153 F.3d 1000, 1003 (9th
Cir. 1998).8 Under such an analysis, it is clear that VAs decisions to enter into the
challenged ESAs were committed to VAs discretion, and therefore are not subject
to judicial review.
467, 468 (9th Cir. 1975). At the time Defendants filed their dismissal motion,Plaintiffs claims were so indeterminate that their focus was not entirely clear. SeeOrder MTD (clarifying, among other things, what final agency action Plaintiffswere alleging). Once the Court clarified Plaintiffs claims in its orders of March16, 2012 (ECF No. 70), June 19, 2012 (ECF No. 87), and Jan. 22, 2013 (ECF
No.108), the fact that Plaintiffs are challenging agency actions that are committedto the agencys discretion became more apparent.8
Some courts evaluate whether an act is committed to agency discretion based onthe language of the statute and whether the general purpose of the statute would
be endangered by judicial review. Pinnacle Armor, Inc. v. United States, 648F.3d 708, 719 (9th Cir. 2011);Harkonen v. United States Dept of Justice, No.C12-629 CW, 2012 WL 6019571 at *14 (N.D. Cal. Dec. 3, 2012). Under thisframework, too, Plaintiffs claims are committed to agency discretion by law
because judicial review is precluded where courts have neither standards norexpertise to effectuate such purpose. See Pinnacle, 648 F.3d at 720. Here, thesharing program is designed to strengthen VA medical programs,see 38 U.S.C. 8151, and review of ESA decisions by courts that have neither the standards norexpertise to strengthen such programs could instead endanger them. Id.
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38 U.S.C. 8153 vests complete discretion in the Secretary to enter or not
enter into enhanced sharing agreements (ESAs). The statute provides, in
relevant part, that to effectively utilize health-care resources the Secretary may
make agreements for the sharing of health-care resources between VA and any
health-care provideror other entity or individual when the Secretary determines
it to be in the best interestof the prevailing standards of the Department medical
care program. 38 U.S.C. 8153(a)(1) (emphasis added).
A. The Language of 8153 Shows TheDecisions to Enter ESAs Are Committed to VAs Discretion
Section 8153 contains at least four separate textual indicators that
Congress intended the decision to enter into an ESA to be entrusted exclusively to
the VA Secretary, and that the statutory language provides no law against which a
court might assess the Secretarys decision to enter into an ESA:
First, and perhaps most significantly, Section 8153 does not require the
Secretary to enter into any sharing agreements. The language is precatory, rather
than mandatory providing that the Secretary may enter into such agreements.
May does not mean must or should. Instead, 8153 contains language that
the Ninth Circuit has repeatedly found commits an agencys decision to the
agencys discretion, and makes it unreviewable. See E.J. Friedman Co. v. United
States, 6 F.3d 1355, 1359 (9th Cir. 1993) (no APA review available where statute
provides that IRS may, in its discretion, issue a certificate of discharge);9Rank v.
Nimmo, 677 F.2d 692, 699 (9th Cir. 1982) (agency decision was unreviewable
because the statutory use of the word may helped make clear that Congress
intended to vest the widest discretion possible in the Administrator).
9Conversely, courts have relied on the presence of mandatory language to find
jurisdiction. See, e.g.,Beno v. Shalala, 30 F.3d 1057, 1066 (9th Cir. 1994).
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Second, Section 8153 explicitly conditions entering into an ESA on the
Secretary[s] determin[ation] of what is in the VA medical programs best
interest. 38 U.S.C. 8153(a)(1). Thus, the touchstone for whether an ESA is
appropriate is only whether the Secretary determines it to be the programs best
interest, not whether it isin the agencys best interest in some objective way. See
Webster, 486 U.S. at 600 (agencys termination decision not reviewable because
the statute provided for termination when the directordeemedit necessary or
advisable in the interests of the United States, not when dismissal is necessary or
advisable to those interests);Ellison v. Connor, 153 F.3d 247, 254 (5th Cir. 1998)
(court lacked jurisdiction when law authorized Secretary to act whenever he shalldeem it to be advantageous to the Government) (internal citation omitted);
Forsyth Cnty. v. Army Corps of Engrs, 633 F.3d 1032, 1041 (11th Cir. 2011) (no
review when statute provides that the Secretary of the Army is authorized to act
for such periods, and upon such terms and for such purposes as he may deem
reasonable in the public interest) (internal citation omitted).
Third, 8153 allows but does not require VA to enter ESAs that, in the
judgment of the Secretary, are in the best interestof the prevailing standards of
the Department medical care program. 38 U.S.C. 8153(a)(1) (emphasis added).
By providing for an assessment of what is in the programs best interest, rather
than delineating a list of provisions or factors that the ESAs should meet, the
statute provides still greater discretion to the Secretary, and no judicially
manageable benchmarks to govern judicial review. See, e.g. Webster, 486 U.S. at
600.
Fourth, the statute provides that the Secretary may enter into ESAs with
any health-care provider orotherentity or individual. 38 U.S.C. 8153(a)(1)
(emphasis added). It could have restricted who VAs sharing partners could be; in
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fact, a prior version of the statute provided just such a restriction. See H.R. Rep.
No. 104-690 at 11 (1996). In enacting the current version of 8153(a)(1),
however, Congress specifically chose to ease earlier restrictions on agency
discretion to enter into sharing agreements. See Pub. L. 104-262, Title III(A)
(1996). Congress use of the words any and other removed any limitation on
who VAs sharing partners could be, reflecting Congress intent to give the
Secretary maximum discretion to choose how, and with whom, the agency should
enter into sharing agreements. See H.R. Rep. No. 104-690 at 11.10
B. The Statutory Framework and Legislative History Show VADecisions to Enter ESAs Are Committed to VAs Discretion
The statutory structure confirms this Congressional intent. See Helgeson,
153 F.3d at 1003 (consider overall statutory structure in determining whether act
has been committed to agency discretion). Congress did not include any guidelines
for judicial review and did not require the Secretary to promulgate any regulations,
which might have constituted law that could be applied.11
Also, Section 8153 is
10 Another indication that Congress intended to commit to the VAs total discretionthe decision to enter ESAs is Congress forbearing from setting standards by whicha court could review these decisions and declining to provide for judicial review ofthese agreements. Instead, the statute provides an alternate oversight mechanism:annual VA reports to Congress about its sharing agreements. See 8153(g);
Rapides Regl Med.Ctr. v. Secy, Dept of Veterans Affairs, 974 F.2d 565, 575 (5thCir. 1992) (Congress retained for itself the measuring stick . . . by which toevaluate the success of the sharing program now recodified at 8153: annualreports from the VA tracking activities under the program.) (Internal citationomitted). Recognizing that Congress intended to maintain oversightresponsibilities for itself, and to foreclose court oversight, it would thwart theCongressional scheme were the Court to find it has jurisdiction to review VA
decisions to enter sharing agreements pursuant to this statute.11To the extent Plaintiffs try to rely on the statutes introductory language about
sharing health-care resources, the Court is respectfully referred to the discussionbelow about how the resources at issue in the challenged ESAs fall within VAspermissible interpretation of the statutes broad terms. See infra II.A.2. Moreover,introductory language about the statutes purposes can hardly be said to be veryconfining. See, e.g., Strickland, 519 F.2d at 469; see also Sierra Club v. USFWS,
No. 11-993, 2013 WL 1111285 (D.D.C. Mar. 19, 2013) (finding Servicesdetermination was a decision committed to the Services discretion by law and thus
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located in Subchapter IV of the U.S. Codes chapter 81. This subchapter is titled
Sharing ofMedical Facilities, Equipment and Information (emphasis added).
Congress did not provide a definition of medical facilities in Subchapter IV. It is
therefore instructive to look at the definition of medical facility that appears in
another subchapter of chapter 81. A medical facility is defined in subchapter I as
any facility or part thereof which is, or will be, under the jurisdiction of the
Secretary for the provision of health-care services (including hospital, nursing
home, or domiciliary care or medical services), including any necessary building
and auxiliary structure, garage, parking facility, mechanical equipment, trackage
facilities leading thereto, abutting sidewalks, accommodations for attendingpersonnel, and recreation facilities associated therewith. 38 U.S.C. 8101(3).
Congress broad definition of the types of facilities that fall within this category
indicates that VA has broad discretion to choose what resources are appropriate
subjects of ESAs.12
Legislative history can also shed light on whether an action is committed to
an agencys discretion. See, e.g., Strickland v. Morton, 519 F.2d 467, 469 (9th Cir.
1975). The legislative history of 8153 makes clear that Congress intended this
statute to expand the scope of ESAs into which the Secretary could enter. Prior to
8153s enactment in 1996, VA was authorized to enter ESAs only with certain
specified health-care entities for the mutual use or exchange of use of specialized
medical resources, a narrowly defined term. H.R. Rep. No. 104-690 at 11 (1996).
unreviewable because statutes clear purpose and goal does not provide theCourt with meaningful standards).12
Nothing in the text of 8151-8153 limits the subjects of ESAs to medicalfacilities, as defined in 8101(3). As described below, VA has exercised its
broad discretion to interpret the phrase health-care support or administrativeresource, contained in the health-care resource definition at 38 U.S.C. 8152(1)to include VHA space and land. See infra II.A.2. VHA space and landencompasses a range of real property assets, including medical facilities.
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Recognizing that these restrictions unduly constrained the Secretarys discretion to
determine what types of agreements might be in the agencys best interests,
Congress enacted the present version of 8153 to ease these various restrictions
and give the Secretary far greater flexibility as to when a VA facility may enter
into such a contract. See id. Congress contemplated that VA would broadly
construe this new authority. Id.13
C. ESA Decisions Are Typical of Actions Committed toAgency Discretion
Courts have found that where an agency is far better equipped than the
courts to deal with the many variables involved in the proper ordering of itspriorities, an agencys action is committed to its discretion. See, e.g.,Lincoln v.
Vigil, 508 U.S. 182, 193 (1993) (citingHeckler, 470 U.S. at 831-32). Decisions to
enter ESAs, which involve assessing the agencys objectives and available
resources, involve just such determinations. See S. Rep. No. 104-372 at 45 (1996)
(statement of Kenneth W. Kizer, Under Secretary for Health, Department of
Veterans Affairs) (allowing VA increased flexibility to share resources with
partners in private and public sectors will best allow VA to allocate its resources to
serve veterans); H.R. Rep. No. 104-280 at 892 (1995) ([t]he amendments [to
8153], developed with an eye to both the difficult budget environment and the
dynamic marketplace within which the VA health-care facilities are operating,
13The post-enactment history of 8153 also demonstrates that Congress intended for
ESA decisions to be committed to VAs discretion. Congress has been informed innumerous ways about the broad discretion VA understands it has with respect to
entering ESAs. See infra II.A.2. Even while Congress has received testimonyabout VA believing it has such broad discretion, and has amended the EnhancedSharing Authority statute a number of times,see infra n.32, Congress has notnarrowed the definition of health-care resources, restricted the purposes forwhich a health-care resource could be used pursuant to a sharing agreement,limited who VAs sharing partners could be or included mandatory standards or
processes by which VA must determine whether entering a proposed sharingagreement is in the best interest of the VA medical program. It is clear, therefore,that Congress did not intend to fetter VAs discretion to enter into ESAs.
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reflect a belief that these facilities need far greater flexibility than existing law
affords them to work out contractual arrangements with other providers, institutes
and entities to share health-care resources).
Decisions like those at issue here, regarding how federal resources like land
will be used, have been deemed classic examples of decisions traditionally
committed to agency discretion. See, e.g.,Strickland, 519 F.2d at 471, n.6
(discretionary land classification decisions are typical of the type of cases raising
non-reviewable category issues);Drakes Bay Oyster Co. v. Salazar, No. 12-cv-
06134-YGR, 2013 WL 451860, at *16 (N.D. Cal. Feb. 4, 2013) ([l]ike other
zoning and land use questions, this issue will be resolved by policymakers chargedwith weighing the conflicting views and priorities of society as part of the decision
making process).14
Likewise, VA is best placed to determine the optimal uses for
its space, land, and property, because it is involved on a daily basis with the
administration of such resources. For this reason, the one court to have previously
addressed the discretionary nature of 8153 concluded that this provision yields
great discretion to the Secretary and shields the Secretarys action from judicial
review. Gibbons v. Fronton, 533 F. Supp. 2d 449, 456(S.D.N.Y. 2008)
(dismissing plaintiffs Federal Tort Claims Act claims because VAs decision to
enter a contract [pursuant to 8153] falls within FTCAs discretionary function
exception).15
14Similarly, agency contracting decisions, like those at issue here, have been found
to be committed to agencies discretion, and therefore unreviewable. See, e.g.,Topgallant Grp., Inc. v. United States, 704 F. Supp. 265 (D.D.C. 1998) (Military
Sealift Commands lifting of a stay suspending performance by contractor isunreviewable because committed to agency discretion by law where statuteauthorized agency to make determination based upon best interest of the UnitedStates).15
By challenging VAs decisions to enter into ESAs with specific sharing partners,Plaintiffs are essentially asking the court to substitute its judgment for theagencys. This is precisely what is not permitted under the APA. See, e.g.,
Johnston Oyster Co. v. Malcom Baldridge, 704 F.2d 1060 (9th Cir. 1983);Strickland, 519 F.2d at 472; City & County of San Francisco v. United States, 443
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II. EVEN IF VAS DECISIONS ARE REVIEWABLE, THEY DO NOT
VIOLATE THE APA
Even if VAs decisions to enter into each of the challenged ESAs are
reviewable, summary judgment should be granted for Defendants because these
decisions were not arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with the law, in violation of 5 U.S.C. 706(2)(A). Review under
this standard is highly deferential, and an agency decision must be upheld provided
the agency does not rel[y] on factors which Congress has not intended it to
consider, entirely fail[] to consider an important aspect of the problem, [or] offer[]
an explanation for its decision that [either] runs counter to the evidence before theagency or is so implausible that it could not be ascribed to a difference in view or
the product of agency expertise. Motor Vehicle Mfrs. Assn v. State Farm Mut.
Auto Ins. Co., 463 U.S. 29, 43 (1983). Under this narrow standard of review, a
court may not substitute its judgment for that of the agency charged with
administering the program at issue. Marsh. v. Or. Natural Res. Council, 490 U.S.
360, 378 (1989). In order to prevail on this claim, Plaintiffs must meet a heavy
burden,see Managed Pharmacy Care v. Sebelius, 705 F.3d 934, 943 (9th Cir.
2012), which cannot be met here. Even when an agency explains its decisions
with less than ideal clarity, a reviewing court will not upset the decision on that
account if the agencys path may reasonably be discerned. Alaska Dept of
Envtl. Conservation v. EPA, 540 U.S. 461, 496 (2004)(citations omitted). Because
agency actions are presumed to be valid, agency decisions must be affirmed if a
reasonable basis exists in the administrative record for the decision, regardless of
how explicitly the agency identified that reasonable basis. Nw. Ecosystem Alliance
F. Supp. 1116, 1123 (N.D. Cal. 1977)) (the cause of action alleges no more thanthat the award . . . was not in the public interest. This squarely presents the issueof whether the Secretarys judgment was or was not correct).
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v. U.S. Fish & Wildlife Serv., 475 F.3d 1136, 1147 (9th Cir. 2007). Where there is
conflicting evidence in the record before the agency, the agencys determination is
accorded deference. Natl Parks & Conservation Assn v. U.S. Dept of Transp.,
222 F.3d 677, 682 (9th Cir. 2000). Finally, an agencys construction of a statute it
is entrusted to administer must prevail if it is a reasonable construction of the
statute, whether or not it is the only possible interpretation or even the one a court
might think best. Holder v. Martinez Gutierrez, 132 S.Ct. 2011, 2017 (2012).
A. VA Acted In Accordance With Law In Entering Into SpaceSharing Agreements at its WLA Campus
Although, as explained above, Congress defined health-care resource in
broad terms, the language of the statute itself reflects Congress view that
agreements to share space are agreements to share health-care resources. Section
8152(1) provides that [t]he term health-care resource includes hospital care and
medical services, . . . any other health-care service, and any health-care supportor
admini strative resource. 38 U.S.C. 8152(1) (emphasis added). Another
provision explicitly refers to space as a health-care resource. See 38 U.S.C.
8153(a)(3) (If the health-care resource required is a commercial service, the use of
medical equipment orspace, or research) (emphasis added).16 Thus, to the
extent that Plaintiffs assertion that the challenged agreements do not concern the
sharing of health-care resources, FAC at 91 (Request for Relief, E) depends upon
a contention that no land or building on the grounds of VAs WLA medical center
is a health-care resource, the claim is flatly contradicted by the statute itself.
16While Section 8153(a)(3) applies specifically to VAs acquisition of health-care
resources, rather than VAs selling (or leasing) of health-care resources, readingthe statute as a whole shows that because space is encompassed within health-care resource, VA can permissibly sell, or buy, the use of space pursuant toSection 8153.
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Any other basis for Plaintiffs APA claim calls into question either VAs
interpretation of the statute which, if reviewable at all, must be afforded great
deference or VAs managerial decisions to enter the specific ESAs at issue.
Either way, VAs statutory interpretations, policy choices, and specific managerial
decisions must be upheld.
1. VAs Reading of Section 8153 Must Be Accorded Deference.Even if an agency is not afforded the widest discretion possible, making
its actions immune from judicial review, the Court must nevertheless defer to the
agencys [broad] discretion where a statute provides an open [definition] of the
bases on which an agency decision may be made. See Rank, 677 F.2d at 699-700.
The broad and ambiguous terms used in 8151-53 confer particularly great
discretion on the agency to decide what criteria it will use in determining whether
and how to exercise its statutory authority. See id. In determining whether the
challenged VA actions are contrary to law within the meaning of 5 U.S.C.
706(2)(B), because the statute is silent or ambiguous with respect to relevant
matters, the question for the court is whether the agencys [interpretation] is based
on a permissible construction of the statute. Chevron U.S.A., Inc. v. Natl Res.
Def. Council, 467 U.S. 837, 842-44 (1984).17
In this inquiry, a court may not
substitute its own construction of [the] statutory provision for a reasonable
interpretation made by [the] agency. Id. at 844. Instead, the court should only
determine whether the agencys interpretation of the statute is rational and
consistent with the statute.NLRB v. United Food & Commercial Workers Union
Local23, 484 U.S 112, 123 (1987).
17 See also Arent v. Shalala ,70 F.3d 610, 616 n.6 (D.C. Cir. 1995) (Noting
considerable overlap between Chevron analysis and State Farms arbitrary,capricious inquiry as to whether, under 706(2)(A), the challenged agency actionmust be set aside as not in accordance with law).
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Because 8151-8153 are silent as to critical matters such as how the
Secretary18
is to determine whether entering a particular ESA is in the best
interest of the VA medical program,19 and leave some ambiguity as to what
constitutes a health-care resource,20 this deferential standard applies to VAs
interpretation of ambiguous terms and gaps in the statute, which is set forth in
VHAs policy directives and handbooks, and reflected in VAs decisions to enter
individual ESAs. See generally AR 16-88 (policy directives and handbooks); AR
191-1685 (individual ESA decisions). The circumstances here support the
application ofChevron deference to both VAs overall interpretation of 38 USC
8151-53 and the specific decisions to enter ESAs that Plaintiffs challenge. SeeBarnhart v. Walton, 535 U.S. 212, 222 (2002) (degree of deference depends upon
the interstitial nature of the legal question, the related expertise of the Agency, the
importance of the question to administration of the statute, the complexity of [the]
administration, and the careful consideration the Agency has given the question
over a long period of time). Indeed, an agencys implicit interpretation of a
statute may be expressed through its explicit determination[s] in making specific
decisions. SeeManaged Pharmacy Care v. Sebelius, 705 F.3d 934, 946 (9th Cir.
2012).
18Decision-making authority is delegated from the Secretary to the Under
Secretary for Health in 38 CFR 17.142 and from the Under Secretary to medicalcenter directors in VHA Handbooks 1660.01, AR 40, 44-45, and 1820.01, AR 59,64-65. The Deputy Assistant Secretary for Acquisition and Materiel Managementgenerally appoints VA selling officials. AR 55.19
The undefined term best interest has been found to be a broad and ambiguous
term capable of multiple permissible interpretations. See, e.g., Pharm. Research &Mfrs. Of Am. v. Thompson, 259 F. Supp. 2d 39, 72 (D.D.C. 2003); affd, 362 F.3d817 (D.C. Cir. 2004). Moreover, an agencys consideration of multiple factorscontributing to the best interest of the agency program and its beneficiaries in theaggregate has been upheld as reasonable even when the agency decision might notserve the best interest of some program beneficiaries. See id.20
For example, Section 8152 does not define health-care support oradministrative resource. See 38 U.S.C. 8152(1).
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Chevron deference is particularly appropriate here because, in managing
space available at its WLA medical center, VA must balance competing interests
based on the health-care and related needs of Veterans, as well as a number of other
statutes and considerations.22 Agency decisions about whether to enter into
agreements are generally afforded a significant degree of deference.23
At a minimum, the level of deference generally given to an agencys
unpublished orders is appropriate here. Under this standard, internal agency
guidance that lacks the force of law is given deference on a sliding scale,
depending upon the thoroughness evident in its consideration, the validity of its
reasoning, its consistency with earlier and later pronouncements, and all thosefactors which give it power to persuade, if lacking power to control. United States
v. Mead, 533 U.S. 218, 228 (2001)(quoting Skidmore v. Swift & Co., 323 U.S.
134, 140 (1944)); accordMarmolejo-Campos v. Holder, 558 F.3d 903, 909 (9th
Cir. 2009). Given the reasonableness of VAs approach to implementing the
sharing authority statute, the agencys reading of the statute should be credited.
22See, e.g., WLA Medical Center, Veterans Programs Enhancement Act of 1998
(VPEA) Master Plan, AR 151-189, at AR 155 (VA required to pursue goal ofcreating a therapeutic and recovery oriented environment on the campus forVeterans to heal); AR161 (development activities on WLA Campus will strive to
benefit the Veteran population in harmony with the surrounding community, andcomply with all applicable laws, codes, ordinances, and regulations, including butnot limited to pertinent environmental and historic preservation laws); and AR174 (use of WLA campus to be based on physical and operational objectivessuch as providing recreational facilities for Veterans and partnering with thecommunity to make the campus esthetically pleasing as well as mission
objectives such as developing physical environment that supports the delivery ofhealth care, education, and research).23
See, e.g.,Am. Fedn of Govt Empls. v. Brown, 680 F.2d 722 (11th Cir. 1982)(deference to agency decision depends on breadth of discretion given to agency;extent to which challenged action is product of political, economic, or managerialchoices; and extent to which challenged action is based on specialized knowledgeor expertise.).
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2. VAs Interpretation Of Its Authority Under 8153 IsPermissible.
VA has permissibly interpreted 8153s inclusion of space as a health
care resource to mean that [e]nhanced sharing agreements for the use of VA
space (including parking, outdoor recreational facilities, and vacant land) are
authorized under 38 U.S.C. Section 8153. AR 26. This is consistent with VAs
interpretation of health care support services and administrative resources as
used in Section 8152. VA has stated that [h]ealth care support [services] serve
medically-related purposes (e.g., biomedical equipment repair, patient transport),
AR 43, while [a]dministrative resources include services not unique to the
provision of medical care, but deemed necessary to support the operation of a
medical center (e.g., transcription services, ground maintenance). Id. It stands to
reason that space, including land and buildings that form part of the WLA
medical center, can reasonably be understood to support the operation of a
medical center, even though, like transcription services or grounds maintenance, it
might not be unique to the provision of medical care. AR 43. Indeed, space and
land under VHA control are necessary to enable VA to provide medical care. To
the extent that Plaintiffs challenge VAs entry into ESAs on the ground that these
resources are not unique to the provision of medical care, they are challenging a
reasonable and longstanding statutory interpretation by the agency Congress
entrusted with broad discretion to decide whether and when to enter ESAS. Id.
VAs interpretation of best interest is, generally, that an ESA should be
executed only when the agency determines, first, that the contract will not result
in the diminution of existing levels of services to [V]eterans, and, second that the
agreement is either necessary to maintain an acceptable level and quality of
services to [V]eterans or will result in the improvement of services to Veterans.
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AR 45. VA understands that determining the best interest of the VA medical
program includes consideration of the contemplated use of VA space. Id. Among
other factors, VA considers the potential impact of a proposed agreement on
patient privacy, VA computer systems, telecommunications and data, parking,
and fire health, and safety and security and law enforcement issues in sharing the
use of VA space. AR 26.
Thus, in order to exercise the Secretarys authority pursuant to 8153, VA
has interpreted both health care resource and best interest in reasonable,
practical ways which enable the agency to exercise its sharing authority
appropriately. Further, as discussed below, VAs decisions to enter specific ESAs
demonstrate the agencys implicit interpretation that agreements to sell space
may benefit Veterans either by reducing VAs costs to maintain under-utilized
resources or by providing revenue that VA uses to support Veteran health care
programs at WLA even where the ESAs permit the space to be used to benefit non-
Veterans.
If there were any doubt that VAs interpretation of 8153 is permissible,
such doubt is eliminated by Congress awareness and implicit acceptance of these
interpretations. It is well established that an agencys interpretation of a statute
may be confirmed or ratified by subsequent congressional failure to change that
interpretation, State Farm, 463 U.S. at 45, particularly where the inference of
congressional approval is supported by more than mere congressional inaction.
Haig v. Agee, 453 U.S. 290, 300 (1981) (internal citation omitted). Here, the
ample evidence of . . . congressional familiarity with the administrative
interpretation at issue, Cape Cod Hosp. v. Sebelius, 630 F.3d 203, 214 (D.C. Cir.
2011) (citation omitted), supports the conclusion that Congress failure to change
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the statute to preclude VAs interpretations establishes Congress acceptance of
VAs interpretations.
VAs annual ESA reports have informed Congress that agreements for the
sharing of space, facilities, and administration, comprise a significant portion
of VA ESAs. See, e.g. AR 116.012, 116.023, 116.044, 116.058, 116.072, 137.
Additionally, VA has made clear that the benefit provided to the VA medical
program by an ESA is often revenue, stating that [t]he sharing authority is . . . a
key mechanism . . . in generating revenues, AR 98, and that the 1996 expansion26
of the definition of health care resources enables VA to offset its costs and
establish revenue streams which are retained at the VAMCs providing the
services where they can, in turn, be used to enhance VAs services to its veteran
beneficiaries. AR 100-101.27
Testimony before its oversight committees provided Congress with further
information about VAs use of ESAs. For example, the GAOs Director of
Physical Infrastructure testified that VA may enter into sharing agreements to
provide the use of VHA space (including parking, recreational facilities, and
vacant land 28 and explained that VA uses sharing agreements to generate financial
benefits.29 In addition, Congress has received testimony about how VA exercises
26VA also noted that These changes greatly enhance VA flexibility and
opportunity to purchase and to sell health care resources. And significantly, as therange of sharing opportunities has broadened, the cost effective delivery of high-quality medical care to VA patients has increased. AR 96.27
Some annual reports also include charts showing the revenue that VA has earnedfrom selling space and other resources within each fiscal year. See, e.g., AR115, 127. VA has received millions of dollars in proceeds annually from sharing
VHA space and land nationwide, including through ESAs at the WLA campus.See AR 94-131.28
Assessing Capital Asset Realignment for Enhanced Services and the Future ofthe U.S. Department of Veterans Affairs Health Infrastructure: Hearing Beforethe H. Comm. on Veterans Affairs, 111th Cong. 79 (2009) (2009 Hearing)(statement of Mark L. Goldstein, Director, Physical Infrastructure, U.S.Government Accountability Office).29
Id. at 78.
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its discretion under 8153 to enter into certain types of agreements, including
agreements allowing VA facilities to be used to film television and movie
productions.31 Members of Congress have even received notification before VA
exercised its discretion to enter into specific ESAs.32
Congress intended to review VAs annual reports with an eye toward any
changes to the sharing statute that might be deemed necessary. See 38 U.S.C.
8153(g). Had Congress wished to curtail VAs discretion, it could have amended
the statute to do so, especially since it has amended 8153 on a number of
occasions.33 However, since Congress did not amend the statute either to narrow
the definition of health-care resource, restrict the purposes for which a health-
care resource could be used pursuant to an ESA, limit who VAs sharing partners
could be, or prescribe how VA must determine the best interest of the VA medical
program, Congress has implicitly accepted VAs interpretations. Cape Cod Hosp.,
630 F.3d at 214. While Congress may not have enshrined VAs interpretations as
the only ones permissible under the statute, its failure to overrule an agencys
construction of legislation is at least some evidence of the reasonableness of that
construction, particularly where the administrative construction has been brought
to Congress attention." United States v. Riverside Bayview Homes, Inc., 474 U.S.
121, 137 (1985).34 Accordingly, Congress has implicitly accepted VAs
interpretations of 8153.
31Seeid .
32See, e.g., AR 228-230 (Letter from Richard Sandler to Rep. Henry Waxman
regarding proposed Brentwood School Sharing Agreement (June 16, 1999)).33 Veterans Benefits Act of 1997, Pub. L. No. 105-114, 111 Stat. 2277; VeteransBenefits and Healthcare Improvement Act of 2000, Pub. L. No. 106-419, 114 Stat.1822; Veterans Health Care, Capital Asset, and Business Improvement Act of2003, Pub. L. No. 108-170, 117 Stat. 2042; Pub. L. No. 111-350, 124 Stat. 3677(2011).34
Courts have rejected claims that, by mere inaction, Congress has acquiesced to aparticular agency interpretation. See, e.g., Morales-Izquierdo v. Gonzales, 486F.3d 484, 493 (9th Cir. 2007) (citing Solid Waste Agency of N. Cook Cnty. v. Army
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B. VAs Decisions To Enter ESAs Are Supportedby the Administrative Record, Which ShowsThat Decisions Were Rationally Based OnRelevant Factors
Even if the Court determines that it has jurisdiction, applying the requisite
level of deference, summary judgment should be granted to Defendants. A review
of the Administrative Record demonstrates the appropriateness of VAs ESA
decisions. Plaintiffs have not met and cannot meet the heavy burden they
would have to bear to overcome the presumption of regularity and have this Court
invalidate those decisions. SeeManaged Pharm., 705 F.3d 943;Akiak Native
Cmty v. U.S. Postal Serv., 213 F.3d 1140, 1146 (9th Cir. 2000).
First, the Administrative Record is replete with examples of VAs
designated decision makers certifying that they have made specific
determinations that, under a particular ESA, (1) Veterans will receive priority for
services; (2) the agreement is necessary either to maintain an acceptable level and
quality of services or to improve such services; and (3) that VAs decision has
been made in the interest of the government and provides a benefit to the
community. See, e.g., AR 212 (Brentwood School ESA); AR 237 (Rancho Santa
Corps, 531 U.S. 159, 169 (2001);Rapanos v. United States, 547 U.S. 715, 749(2006)). However, those cases are distinguishable. InMorales-Izqueirdo, forexample, the plaintiff argued that because Congress had acquiesced to an agencys
previous regulation, a more recent one reflecting a different interpretation wasinvalid.Id. at 493. The Ninth Circuit rejected that argument for failure to point[]to anything in the legislative history that discloses congressional acquiescence inthe agency's past practice, and explained that [a] finding of congressional
acquiescence must be reserved for those rare instances where it is very clear thatCongress has considered and approved of an agencys past practice lest the agencybe improperly deprived of the very flexibility Congress intended to delegate. 486F.3d at 493. Here, in contrast, VAs annual reports to Congressional oversightcommittees provide clear evidence that Congress considered and accepted VAsadministrative practices. Moreover, VA is not arguing that Congressionalacquiescence restricts VA to a particular statutory interpretation, which woulddeprive the agency of flexibility, but only that Congress has implicitly acceptedVAs current, longstanding interpretation as a permissible one.
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Ana Botanical Garden ESA); AR 337 (Sodexo Marriott Laundry Services ESA);
AR 1036 (Westside Services ESA).
Second, the record contains ample evidence that VA weighed relevant
factors and reached a determination that on balance the ESAs were in the best
interest of the . . . [VA] medical program. 38 U.S.C. 8153(a)(1). With respect
to some ESAs, VAs best interest determination was based in part on the
anticipated creation of Compensated Work Therapy (CWT) jobs35 or other
employment opportunities for Veterans. See, e.g., AR 296 (Rancho Santa Ana
Botanical Garden); AR 616 (Twentieth Century Fox ESA); AR 674 (U.S. Vets
Initiative; AR 1058 (Farmers Market ESA); AR 1112 (Richmark Entertainment
ESA)). With respect to others, the agencys best interest determination rested
largely on the provision of support services and temporary or transitional housing
to homeless Veterans. See, e.g., AR 449-450; AR 525-526 (Salvation Army ESAs
for Buildings 212 and 207). In making some ESA decisions, VAs best interest
determination was based in part upon availability of recreational opportunities for
Veterans. See, e.g., AR 194 (Brentwood School ESA); AR 384 (UCLA baseball
stadium ESA); AR 827 (Veterans Park Conservancy ESA); AR 880 (Westside
Breakers Soccer Club); accordAR 174 ([p]roved[ing] recreational facilities for
Veterans living on campus is one of the [p]hysical [o]bjectives guiding use of
WLA Campus). Finally, in some instances, VAs best interest determination
was based either partly or entirely on anticipated revenue that would benefit
Veterans and/or a reduction in the cost to VA of maintaining the underlying real
property. See, e.g., AR 204, 276 (Brentwood School ESA); AR 334 (Sodexo
35CWT jobs provide eligible Veterans a chance to learn and improve work skills
and habits in order to transition to more independent living. See 38 U.S.C. 1718, 2013(a)(3).
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Marriott Laundry ESA); AR 412 (Jackie Robinson Baseball Stadium); AR 616
(Twentieth Century Fox ESA).
Thus, applying the highly deferential standard under which agency action is
presumed to be justified, see Natl Wildlife Fedn v. Burford, 871 F.2d 849, 856
(9th Cir. 1989), VAs challenged decisions should be upheld. Plaintiffs claim that
VA improperly used its sharing authority to enter ESAs that were not for sharing
of health-care resource, is entirely without support in the administrative record.
The challenged ESAs must be upheld because they are based on VAs
consideration of the relevant factors and there is no clear error of judgment.
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CONCLUSION
Defendants Motion for Summary Judgment should be granted.
Dated: April 10, 2013
Respectfully submitted,
STUART F. DELERYActing Assistant Attorney GeneralANDRE BIROTTE JR.United States Attorney
LEON W. WEIDMANChief, Civil DivisionALARICE M. MEDRANOAssistant United States AttorneyJUDRY L. SUBARAssistant Branch Director
By: /s/ Elisabeth LaytonELISABETH LAYTONSenior CounselKAREN S. BLOOMTrial AttorneyU.S. Department of JusticeCivil DivisionFederal Programs Branch20 Massachusetts Ave., N.W.Washington, DC 20001T: (202) 514-3183;F: (202) 616-8470Email: [email protected]
ttorneys for Defendants
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