Powers v. McDonough

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 23, 2025
• Docket: 24-6338
• Status: Published

Opinion

FOR PUBLICATION

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

JEFFREY POWERS; DEAVIN No. 24-6338 SESSOM; LAURIEANN WRIGHT; JOSEPH FIELDS; LAVON D.C. No. JOHNSON; JOSHUA ROBERT 2:22-cv-08357- PETITT; NATIONAL VETERANS DOC-KS FOUNDATION,

Plaintiffs - Appellees, OPINION

BRIDGELAND RESOURCES, LLC,

Intervenor-Plaintiff - Appellee,

v.

DENIS RICHARD MCDONOUGH; STEVEN BRAVERMAN; KEITH HARRIS; MARCIA L. FUDGE; DOUGLAS GUTHRIE,

Defendants - Appellees,

REGENTS OF THE UNIVERSITY OF CALIFORNIA, 2 POWERS V. MCDONOUGH

Not Party in Lower Court - Appellant.

JEFFREY POWERS; DEAVIN No. 24-6576 SESSOM; LAURIEANN WRIGHT; JOSEPH FIELDS; LAVON D.C. No. JOHNSON; JOSHUA ROBERT 2:22-cv-08357- PETITT; NATIONAL VETERANS DOC-KS FOUNDATION,

and

SAMUEL CASTELLANOS, SHARDAY ANYADIEGWU, BILLY EDWARDS, JESSICA MILES, GLENN SURRETTE, NARYAN STIBBIE, DOES 1-10,

Plaintiffs,

DENIS RICHARD MCDONOUGH; STEVEN BRAVERMAN; KEITH HARRIS; MARCIA L. FUDGE, POWERS V. MCDONOUGH 3

Defendants - Appellants,

DOUGLAS GUTHRIE,

Defendant - Appellee,

----------------------------------------

BRENTWOOD SCHOOL,

Intervenor.

JEFFREY POWERS; DEAVIN No. 24-6578 SESSOM; LAURIEANN WRIGHT; JOSEPH FIELDS; LAVON D.C. No. JOHNSON; JOSHUA ROBERT 2:22-cv-08357- PETITT; NATIONAL VETERANS DOC-KS FOUNDATION,

SAMUEL CASTELLANOS, SHARDAY ANYADIEGWU, BILLY EDWARDS, JESSICA MILES, GLENN SURRETTE, NARYAN STIBBIE, DOES 1-10, 4 POWERS V. MCDONOUGH

Intervenor-Plaintiff - Appellant,

DENIS RICHARD MCDONOUGH; STEVEN BRAVERMAN; KEITH HARRIS; MARCIA L. FUDGE; DOUGLAS GUTHRIE,

Defendants - Appellees.

No. 24-6603 JEFFREY POWERS; DEAVIN SESSOM; LAURIEANN WRIGHT; D.C. No. JOSEPH FIELDS; LAVON 2:22-cv-08357- JOHNSON; JOSHUA ROBERT DOC-KS PETITT; NATIONAL VETERANS FOUNDATION,

Plaintiffs - Appellees,

SAMUEL CASTELLANOS, SHARDAY ANYADIEGWU, BILLY EDWARDS, JESSICA MILES, GLENN SURRETTE, NARYAN STIBBIE, DOES 1-10, POWERS V. MCDONOUGH 5

DENIS RICHARD MCDONOUGH; STEVEN BRAVERMAN; KEITH HARRIS; MARCIA L. FUDGE; DOUGLAS GUTHRIE,

REGENTS OF THE UNIVERSITY OF CALIFORNIA,

JEFFREY POWERS; DEAVIN No. 24-6888 SESSOM; LAURIEANN WRIGHT; JOSEPH FIELDS; LAVON D.C. No. JOHNSON; JOSHUA ROBERT 2:22-cv-08357- PETITT; NATIONAL VETERANS DOC-KS FOUNDATION, 6 POWERS V. MCDONOUGH

DENIS RICHARD MCDONOUGH; STEVEN BRAVERMAN; KEITH HARRIS; MARCIA L. FUDGE; DOUGLAS GUTHRIE,

BRENTWOOD SCHOOL, Proposed Intervenor,

Movant - Appellant.

Appeal from the United States District Court for the Central District of California David O. Carter, District Judge, Presiding

Argued and Submitted April 8, 2025 Pasadena, California

Filed December 23, 2025 POWERS V. MCDONOUGH 7

Before: Consuelo M. Callahan, Roopali H. Desai, and Ana de Alba, Circuit Judges.

Opinion by Judge de Alba

SUMMARY *

Veterans Affairs

The panel affirmed in part, reversed in part, vacated in part, and remanded to the district court to enter judgment in a class action brought by unhoused veterans with severe disabilities and mental illnesses against the United States Department of Veterans Affairs (VA) and the Department of Housing and Urban Development (HUD), seeking to return the West Los Angeles VA Grounds to its intended use of housing disabled veterans. After a four-week bench trial, the district court found that the land-use leases the VA had with the Regents of the University of California, Los Angeles, Brentwood School, and Bridgeland Resources, LLC, were unlawful; voided these leases; and enjoined the VA from renegotiating them. The district court also ordered the VA to build supportive housing for veterans on the West Los Angeles VA Grounds. Plaintiffs argued that the VA and HUD violated Section 504 of the Rehabilitation Act because (1) the VA’s lack of supportive housing denies unhoused veterans with serious

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. 8 POWERS V. MCDONOUGH

mental illness or traumatic brain injury meaningful access to the VA’s healthcare services; (2) under Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999), the VA failed to provide class members their disability benefits “in the most integrated setting appropriate to their needs,” placing them at a “serious risk of institutionalization”; and (3) the VA’s policy of contracting with housing developers who impose Average Median Income (AMI) limitations is facially discriminatory because it discriminates based on disability by counting veterans’ benefits as income. Next, Plaintiffs claimed that the 1888 Deed that created the VA Grounds created a charitable trust and that the VA breached enforceable fiduciary duties to Plaintiffs. Last, Plaintiffs claimed that certain land-use agreements violated the Administrative Procedures Act. The panel held that the Veterans Judicial Review Act did not strip federal courts of jurisdiction to hear Plaintiffs’ Rehabilitation Act claims because Plaintiffs are not collaterally attacking the VA’s individual benefits determinations. Next, the panel held that the district court did not abuse its discretion in certifying Plaintiffs’ class for the meaningful access and Olmstead claims, rejecting the VA’s argument that Plaintiffs did not meet the commonality element. On the merits, the panel held that the district court did not err in finding that the VA denied Plaintiffs “meaningful access” to their healthcare, in finding in Plaintiffs’ favor on their Olmstead claim, and finding that the VA’s policy of contracting with third-party housing developers who impose income limitations and count veterans’ disability benefits as income is facially discriminatory under the Rehabilitation Act. However, the district court erred in entering judgment POWERS V. MCDONOUGH 9

against HUD on Plaintiffs’ meaningful access, Olmstead, and AMI claims. Addressing the charitable trust claim, the panel held that Plaintiffs had special interest standing to sue. On the merits, the panel held that the district court erred in finding that the West Los Angeles Leasing Act of 2016 and its 2021 Amendment imposed judicially enforceable fiduciary duties on the VA, and therefore reversed the district court’s judgment in favor of Plaintiffs on their charitable trust claim. Because judgment on Plaintiffs’ charitable trust claim was the only basis for which the district court invalidated a UCLA lease on the VA Grounds and enjoined UCLA, the panel dismissed UCLA’s consolidated appeals as moot, and vacated any injunctive relief with respect to UCLA’s lease and services. To the extent that the district court voided Brentwood School leases and Bridgeland Resources, LLC’s licenses on the VA Grounds and ordered injunctive relief based on Plaintiffs’ charitable trust claim, the panel vacated that part of the district court’s judgment as well. Next, the panel held that Brentwood’s lease violated the Leasing Act and the APA. Because the lease principally benefited Brentwood’s students, not veterans, it violated the Leasing Act. Since Brentwood’s lease was contrary to statutory authority, it was in violation of the APA. Similarly, Bridgeland’s revocable license violated the Leasing Act and the APA. Addressing the propriety of the district court’s permanent injunction with respect to the Rehabilitation Act claims, the panel held that the district court did not abuse its discretion by ordering the VA to construct 1,800 permanent housing units and 750 temporary housing units to remedy its 10 POWERS V. MCDONOUGH

discrimination as relief for the meaningful access and Olmstead violations, and by ordering the VA to build housing itself if it could not find developers willing to refrain from discrimination as relief for the AMI claim. However, with respect to the APA claims, the district court abused its discretion in the scope of its injunction when the district court not only voided the unlawful leases with Brentwood and Bridgeland but also prohibited the VA from renegotiating them and, later, ordered the VA to enter into a settlement agreement with Brentwood.

COUNSEL

Mark D. Rosenbaum (argued), Kathryn A. Eidmann, Amanda R. M. Savage, Amanda K. Pertusati, and Amelia Piazza, Public Counsel, Los Angeles, California; David Martinez, Roman M. Silberfeld, and Tommy H. Du, Robins Kaplan LLP, Los Angeles, California; Eve L. Hill and James Strawbridge, Brown Goldstein & Levy LLP, Baltimore, Maryland; T. E. Glenn, Amanda Powell, and Charles Kohorst, Inner City Law Center, Los Angeles, California; Keith E. Smith, Wood Smith Henning & Berman LLP, Riverside, California; Mark C. Priebe (argued), Carter G. Phillips, and Tacy F. Flint, Sidley Austin LLP, Chicago, Illinois; for Plaintiffs-Appellees. Ernest J. Guadiana (argued), Sean A. McCormick, Julie Z. Kimball, Justin Trujillo, and Angela M. Butcher, Elkins Kalt Weintraub Reuben Gartside LLP, Los Angeles, California; for Intervenor-Plaintiff-Appellee. POWERS V. MCDONOUGH 11

Daniel L. Winik (argued), Charles W. Scarborough, and Amanda L. Mundell, Attorneys; Appellate Staff, Civil Division; Catherine M. A. Carrol, Deputy Assistant Attorney General; Bilal A. Essayli and E. Martin Estrada, United States Attorneys; Yaakov M. Roth, Acting Assistant Attorney General; Brian M. Boynton, Principal Deputy Assistant Attorney General; United States Department of Justice, Washington, D.C.; for Defendants-Appellants. Raymond A. Cardozo (argued), Reed Smith LLP, San Francisco, California; Kasey J. Curtis and Corinne Fierro, Reed Smith LLP, Los Angeles, California; for Not Party in Lower Court-Appellant. Eric D. Walther (argued) and Jonathan C. Sandler, Brownstein Hyatt Farber Schreck LLP, Los Angeles, California; Louis R. Miller and Colin Rolfs, Miller Barondess LLP, Los Angeles, California; for Intervenor. Robin Meadow, Kent W. Toland, Alana Rotter, and Katarina Rusinas, Greines Martin Stein & Richland LLP, Los Angeles, California; for Amici Curiae Veterans Organizations. Evelyn Danforth-Scott, American Civil Liberties Union Foundation, San Francisco, California; Bridget Lavender, American Civil Liberties Union Foundation, New York, New York; Michelle Fraling, American Civil Liberties Union Foundation, Washington, D.C.; for Amici Curiae Legal Scholars. Peter E. Perkowski, Perkowski Legal PC, Los Angeles, California; Dana Montalto and Daniel Nagin, Legal Services Center, Harvard Law School, Jamaica Plain, Massachusetts; Rose C. Goldberg, Deborah L. Rhode Center on the Legal Profession, Stanford Law School, Stanford, California; 12 POWERS V. MCDONOUGH

Maureen E. Siedor, Swords to Plowshares, San Francisco, California; for Amicus Curiae Swords to Plowshares. Dan Marmalefsky, Christopher R. Adler, Vincent M. Benlloch, and Lillian M. McNeal, Morrison & Foerster LLP, Los Angeles, California; for Amici Curiae Peter W. Chiarelli, William H. McRaven, Michael G. Mullen, and David W. Sutherland. John W. Keker, Maile Yeats-Rowe, Yegina Whang, and Matthew P. Guiang, Keker Van Nest & Peters LLP, San Francisco, California; for Amicus Curiae Vets Advocacy.

OPINION

DE ALBA, Circuit Judge:

The United States Department of Veterans Affairs’ (“VA”) mission is “[t]o fulfill President Lincon’s promise to care for those who have served in our nation’s military and for their families, caregivers, and survivors.” 1 This class action lawsuit, and its numerous appeals, demonstrates just how far the VA has strayed from its mission. There are now scores of unhoused veterans trying to survive in and around the greater Los Angeles area despite the acres of land deeded to the VA for their care. Rather than use the West Los Angeles VA Grounds as President Lincoln intended, the VA has leased the land to third party commercial interests that do little to benefit the veterans.

1 See U.S. Department of Veterans Affairs, https://department.va.gov/about/ (last visited May 19, 2025). POWERS V. MCDONOUGH 13

Through this plethora of litigation, Plaintiffs seek to return the West Los Angeles VA Grounds to its intended use: housing disabled veterans. The class of Plaintiffs consists of unhoused veterans who have severe disabilities and mental illnesses. After a four-week bench trial, the district court ruled in Plaintiffs’ favor and found, inter alia, that the land- use leases the VA had with the Regents of the University of California, Los Angeles (“UCLA”), Brentwood School, and Bridgeland Resources, LLC, were unlawful. The district court voided these leases and enjoined the VA from renegotiating them. The district court also ordered the VA to build supportive housing for veterans on the West Los Angeles VA Grounds. The VA, the Department of Housing and Urban Development (“HUD”), and the third-party lessees appeal different parts of the district court’s rulings. We have jurisdiction pursuant to 28 U.S.C. § 1291. For the reasons explained below, we affirm in part, reverse in part, vacate in part, and remand to the district court to enter judgment accordingly. I. Background A. History of the West Los Angeles VA Grounds In 1888, Senator John P. Jones and Arcadia B. de Baker deeded 300 acres of land between Santa Monica and Los Angeles, California to the United States Government (the “1888 Deed”). “[I]n consideration” of the deed, the land was to be used to “locate, establish, construct, and permanently maintain a branch of [the] National Home for Disabled Volunteer Soldiers.” Later in her life, Ms. de Baker donated an additional 300 acres to the Government for the same purpose. The West Los Angeles VA Grounds consists of these 600 acres (the “Campus”), whose intended use was to create a community for the benefit of disabled veterans. 14 POWERS V. MCDONOUGH

After Ms. de Baker’s donation, the development of the Campus commenced. In the 1930s, at the Campus’s peak, approximately 5,000 veterans resided there and received educational and vocational services. In the 1970s, however, the Campus transitioned from primarily providing housing and educational services to serving as a condensed healthcare and research Campus, thereby leaving land, housing, and amenities unused and in disrepair. Notwithstanding the influx of veterans returning from the Vietnam war, the VA stopped accepting new residents and, instead, began selling off parts of the Campus to private parties until only about half of the 600 acres remained. This practice ended in 2007 when Congress expressly prohibited it. See Pub. L. No. 110–161 § 224. As private commercial interests moved into the Campus, unhoused (or any) veterans were no longer a priority. As the VA described it in its 2022 Master Plan for the Campus:

In the 70s, residential use declined, and the [Campus] began the practice of leasing land . . . to private commercial interests, including the UCLA baseball stadium, the Brentwood School athletic complex, Marriott Hotel Laundry, Enterprises car rentals, and rare bird sanctuary . . . . The [Campus] generated millions of dollars from this leasing policy that provided little direct benefit to Veterans (emphasis added).

Today the Campus consists of 388 acres and sits in one of the most expensive and exclusive neighborhoods in Los Angeles—Brentwood. The Campus also houses the VA’s Greater LA Medical Center (the “Medical Center”): the POWERS V. MCDONOUGH 15

centerpiece of the VA’s Greater Los Angeles Healthcare System (“VAGLAHS”), providing some of the best treatment for serious mental illness, traumatic brain injury, and post-traumatic stress disorder. Today, the Medical Center remains the premier healthcare facility for veterans in Southern California and is often described as the best of its kind in the nation. It houses a main hospital, research facilities, and two nursing homes. The Medical Center provides “the bulk of the specialty care” available to veterans in Los Angeles and acts as “a referral center for [other] clinics” that lack specialty care capabilities. The Medical Center also hosts a domiciliary for unhoused veterans in substance-abuse treatment. In short, the Medical Center provides specialized and critical services that veterans in the greater Los Angeles area can only access at that facility. B. The 2011 Valentini Lawsuit In 2011, ten unhoused “severely disabled veterans with mental disabilities” and/or “brain injuries” sued the VA, alleging mismanagement of the Campus. Valentini v. Shinseki, 860 F. Supp. 2d 1079 (C.D. Cal. 2012). The claims in that lawsuit are almost identical to the claims Plaintiffs raised in this case, which, as in Valentini, fall into three main categories. Id. at 1087. First, the Valentini plaintiffs raised claims under Section 504 of the Rehabilitation Act, arguing that “without permanent supportive housing, veterans with severe mental illness are unable to access the” health benefits that the VA provides on the Campus. Id. at 1116. Second, the Valentini plaintiffs argued that the 1888 Deed created a judicially enforceable charitable trust and that the VA breached its fiduciary duties when it entered Campus- related land-use contracts with third parties that did not 16 POWERS V. MCDONOUGH

benefit veterans. Id. Third, the Valentini plaintiffs claimed that these land-use contracts also violated the Administrative Procedures Act (“APA”). Id. at 1088. The Valentini district court dismissed the plaintiffs’ Rehabilitation Act and charitable trust claims. Id. at 1117; Valentini v. Shinseki, 2012 WL 12882704, at *6 (C.D. Cal. June 19, 2012). As for plaintiffs’ APA claims, the district court held that the challenged land-use contracts were “unauthorized by law” and, therefore, void. Valentini v. Shinseki, 2013 WL 12121981, at *14 (C.D. Cal. Aug. 29, 2013). The VA, nonetheless, subsequently renewed some of those agreements, including those with UCLA and Brentwood School. C. The Master Plan and the West L.A. Leasing Act In January 2015, while Valentini was on appeal, the VA settled with the plaintiffs, pledging to draft and implement a Master Plan that would provide permanent supportive housing and supportive services for veterans on the Campus. 2 1. The Master Plan After public notice and comment, the VA issued a Draft Master Plan for the Campus in 2016 (the “2016 Plan”). The 2016 Plan stated that the key objective was to “[r]evitalize the [Campus] to its intended purpose as a home; a vibrant community that includes the development of high-quality housing tailored to priority Veteran subpopulations.” In the 2016 Plan, the VA committed to building 1,200 units of permanent supportive housing on the Campus by 2030, with 770 units to be completed by 2022. New housing was to

2 The settlement agreement was not judicially enforceable. POWERS V. MCDONOUGH 17

include “robust supports that promote wellbeing and holistic, strength-based services to augment [the VA’s] existing structure of healthcare services.” Recognizing that veterans living on the Campus would often require “ongoing and proactive case management” for their “serious and persistent mental illness,” the 2016 Plan recommended locating case managers and for “certain supportive services . . . in the same buildings or neighborhoods as the residences . . . to be easily accessible.” The 2016 Plan also discussed whether pre-existing land- use agreements could fit within the plans to renovate the Campus. The VA committed to reviewing and renegotiating some contracts the court found unlawful by seeking “fair market value rent” from those parties and “in-kind consideration” that would provide for veterans’ needs. The 2016 Plan reiterated that the VA was committed to making the land-use agreements “veteran focused.” 2. West Los Angeles Leasing Act Immediately after the VA developed the 2016 Plan, Congress passed the West Los Angeles Leasing Act of 2016 (the “Leasing Act”), see Pub. L. No. 114-226, 130 Stat. 926, “[t]o assist VA in carrying out” the 2016 Plan’s goals to create permanent supportive housing. H. Rep. No. 114-570, at 6. The Leasing Act authorized the VA to enter into three types of leases on the Campus: (1) “enhanced-use lease . . . for purposes of providing supportive housing . . . that principally benefit[s] veterans and their families[;]” (2) “lease[s] to a third party to provide services that principally benefit veterans and their families . . . [;]” and (3) a lease to the “Regents of the University of California, . . . on behalf of its [UCLA] campus[,]” subject to specific enumerated requirements. Leasing Act § 2(b). 18 POWERS V. MCDONOUGH

In 2021, Congress amended the Leasing Act, expanding the permissible uses of lease revenue to include, inter alia, “[s]upporting construction, maintenance, and services at the Campus relating to temporary or permanent supportive housing for homeless or at-risk veterans and their families.” West Los Angeles VA Campus Improvement Act of 2021, Pub. L. No. 117-18, § (2)(a). That same year, the VA Office of Inspector General (“VA OIG”) reported to Congress that “the VA has not constructed a single new unit of [permanent supportive housing] pursuant to the [Valentini] settlement,” and “fail[ed] even to make essential infrastructure upgrades for utilities like water, sewer, and stormwater systems[.]” 3 In April 2022, the VA released an updated Master Plan, which finalized its plan for building housing on the Campus and stated that all permanent supportive housing will not be completed until 2030. 3. Land-Use Agreements on the Campus a. Brentwood School Brentwood School (“Brentwood”) is a private school and a 501(c)(3) nonprofit organization in West Los Angeles, with approximately 1,100 students in kindergarten through twelfth grade. It has an endowment of $30 million and tuition ranging from $45,000 to $53,000 per student per year depending on grade level. Brentwood has been present on the Campus since the 1970s, when the VA allowed Brentwood to use its property for student parking and school

3 The Leasing Act directed the VA OIG to submit to Congress, after two and five years, “a report on all leases carried out at the Campus,” including the VA’s 2016 Plan implementation. Leasing Act § 2(j)(3). POWERS V. MCDONOUGH 19

and athletic events. For the first two decades of the agreement, Brentwood used the land for free. In 1999, the VA and Brentwood entered into an agreement for Brentwood to build its athletic facilities on 22 acres of the Campus. Brentwood subsequently spent $15 million developing its athletic facilities, which now include a football field, a track stadium, an aquatic center, three baseball fields, a soccer field, a basketball court, a lacrosse field, a volleyball and fencing pavilion, six tennis courts, a softball field, and a workout and weights facility. The aquatic center includes an Olympic-sized swimming pool. Brentwood fields athletic teams in all the sports listed above, and it regularly schedules games, meets, and tournaments with other schools which take place at these facilities. It also charges fees for students across the city to attend summer camps utilizing the aquatic center and tennis courts. Brentwood also uses these athletic facilities and programs as part of their student recruitment efforts. In November 2016, after the Valentini settlement, the VA entered into a new agreement with Brentwood. Pursuant to the agreement, the VA allowed Brentwood to continue using the 22 acres in exchange for an annual payment of $850,000 and $918,000 in in-kind annual consideration, consisting primarily of upkeeping and maintaining the 22 acres and providing services to veterans. Brentwood provides veterans with access to its facilities, but Brentwood decides when and how to grant access. For example, Brentwood allows veterans access to the swimming pool on Mondays, Wednesdays, and Fridays from 5:30 a.m. to 7:30 a.m., and on the weekends from 11:00 a.m. to 3:00 p.m.; veterans may use the track every weekday from 5:00 a.m. to 11:00 a.m. Also, Brentwood operates a shuttle every day 20 POWERS V. MCDONOUGH

from 9:00 a.m. to 2:00 p.m. to transport veterans from other areas of the Campus to the athletic facilities. In 2018 and 2021, pursuant to the Leasing Act, the VA OIG audited Brentwood’s lease, and concluded, in relevant part, that the lease violated the Leasing Act because it did not principally benefit veterans. It also found that the in- kind services Brentwood provided were not authorized by law and that the accepted consideration for the 22 acres was below the appraised rental price for the land. The VA OIG instructed the VA to terminate the lease, but the VA refused, stating that the VA OIG was misinterpreting the Leasing Act. b. Bridgeland Resources, LLC Bridgeland Resources, LLC (“Bridgeland”) is an oil company that operates oil and gas wells and associated infrastructure on a three-acre portion on the Campus (“Sawtelle-2”). In the 1950s and 1960s, the U.S. Bureau of Land Management (“BLM”) 4 entered leases with Bridgeland’s predecessor in interest, allowing them to produce oil and gas from 670 acres of federally owned land beneath the Campus. Bridgeland’s oil and gas production leases and subsurface rights are relevant here because the company slant-drills for oil in wells that pass through the subsurface of the Campus. In 2017, the VA renewed a revocable license that had expired in 2002 for Bridgeland to continue extracting oil and gas from below the Campus. In return, Bridgeland agreed to “donate a 2.5 percent royalty on the proceeds that is generate[d] from slant-drilling to the Los Angeles Chapter of the Disabled American Veterans.” The

4 The BLM is not a party to this case, and Bridgeland’s leases with the BLM are not at issue. POWERS V. MCDONOUGH 21

charity organization would then use the royalties to provide transportation to veterans on and around the Campus. This royalty “hovered in the $75,000-$125,000 range.” Private parties and Bridgeland retained the rest of the revenue from the drill site, which is over $6 million dollars per year. In 2018 and 2022, the VA OIG audited this revocable license and concluded that it also violated the Leasing Act. Neither the VA nor Bridgeland took any steps to remedy the violations. c. UCLA UCLA has a long-standing relationship with the Campus. Beginning in 1963, UCLA has leased a 10-acre parcel, which today includes UCLA’s Jackie Robinson Stadium, its practice infield, and an adjacent parking lot. Since then, UCLA’s baseball team has played its home games at the stadium and trains, holds meetings, and hosts recruitment efforts in these facilities. After the Valentini settlement, Congress approved UCLA’s land-use lease pursuant to specific requirements. See Leasing Act § 2(b)(3). In December 2016, the VA and UCLA entered into a new agreement that expires in 2026. In exchange for using the 10-acres, UCLA pays an annual rent of $300,000 and $1,350,000 in recorded in-kind services. Although, as of 2015, the appraised annual rental value of the property was approximately $2.7 million, the 2018 and 2021 VA OIG reports have found the lease compliant with the Leasing Act. Notwithstanding the VA OIG’s findings, the district court questioned the value of the in-kind donations UCLA provides to veterans, as well as UCLA’s commitment to providing veteran focused services. For example, trial 22 POWERS V. MCDONOUGH

evidence shows that one of the main lease commitments— to establish and operate a UCLA Veterans’ Legal Clinic on the Campus at a cost to UCLA of $4,000,000 over ten years—is unfulfilled. The clinic only enrolled six to eight students per semester and none over the summer, provided a very limited range of direct civil legal services, did not offer consistent office hours, and provided no civil rights or criminal defense services. Additionally, during the COVID- 19 pandemic, UCLA refused to make the parking lot adjacent to its practice infield available for emergency housing for unhoused veterans because it would interfere with UCLA’s home game schedule. There was also evidence that the VA and UCLA secretly amended their leasing agreement to enable UCLA to accept a two-million donation to make improvements to its baseball complex. D. Unhoused Veterans in the L.A. Area and Housing 1. Unhoused Veterans in the Los Angeles Area Beginning in May 2020, unhoused veterans that were turned away from the Campus due to lack of housing availability began to create their own community, known as “Veterans Row.” Veterans Row was a collection of tents— many of which were draped with the United States flag to signal that a veteran lived there—on San Vicente Boulevard right outside the Campus. At the height of the COVID-19 pandemic, the VA declined to provide Veterans Row residents with food, shelter, masks, sanitizers, bedding, bathrooms, or dumpsters. This prompted the local community to try to support the unhoused veterans in place of the VA. Notably, permanent supportive housing is not a “benefit” provided to veterans “under laws administered by the [VA].” See 38 U.S.C. § 20.3. In November 2021, law enforcement cleared out the Veterans Row encampment. POWERS V. MCDONOUGH 23

Since the clearing of Veterans Row, more veterans have moved into the Campus, and the VA’s efforts in reducing the number of unhoused veterans has resulted in some slight improvements. Nonetheless, at the time of trial, there were approximately 3,000 unhoused veterans in the greater Los Angeles area. By the VA’s own estimate, most of the unhoused veterans have serious mental illness (“SMI”) 5 or traumatic brain injury (“TBI”). These disabilities frequently arise from veterans’ military service, often in combat. 2. Temporary Shelters and Permanent Housing The VA created the Care, Treatment, and Rehabilitation Services (“CTRS”) program at the height of the COVID-19 pandemic, after community advocates pushed the VA to accept donated tents to help unhoused veterans living on Veterans Row. At first, the VA provided “child-size pup tents in a parking lot.” However, after law enforcement cleared Veterans Row, the VA switched from tents to Tiny Sheds. Tiny Sheds are 8-by-10-foot sheds with no restroom or kitchen of their own, though there are communal showers and bathroom facilities in the area. Although the VA’s intent is to transition veterans in the CTRS program to permanent housing within sixty to ninety days, some veterans have lived in these sheds for months and even years. Currently there are 147 sheds on the Campus. Regarding permanent housing, there were 233 privately- operated units of permanent supportive housing on the Campus at the time of trial — all of which were occupied. Some of these units are reserved for veterans over the age of

5 SMI is “a collection of psychological disorders like schizophrenia, bipolar disorders, severe forms of depression, anxiety, and other psychoses.” 24 POWERS V. MCDONOUGH

62 with SMI, and all of them have income eligibility requirements. In addition to these units, there are 535 permanent units under construction. The remaining 479 supportive units projected for construction under the 2016 Plan will not be completed until 2030; none of these remaining units have a set date for occupancy, nor has construction started. 3. Area Median Income Eligibility Requirements The VA and HUD offer a specific housing voucher program to subsidize housing for veterans, provided primarily through the HUD-Veterans Affairs Supportive Housing (“HUD-VASH”) program. HUD allocates vouchers, and public housing agencies (“PHAs”) distribute them to qualifying veterans. This system is “use it or lose it,” which means that if a PHA does not use at least 70% of the vouchers allocated to it, the PHA is generally unable to obtain additional vouchers. In Los Angeles, these vouchers were underused even though the city has one of the largest populations of unhoused veterans in the country. The program generally groups the housing opportunities into two categories: tenant-based housing and project-based housing. Tenant-based vouchers are tied to a tenant, which means that veterans can use them to subsidize their rent on the private market. Project-based vouchers are tied to a specific unit or building. The housing on the Campus uses project-based vouchers. All permanent housing units developed according to the 2016 Plan are subject to Enhanced Use Leases between the VA and third-party housing developers who build and lease housing on the Campus. These developers can impose additional qualifying requirements to veterans beyond those requirements under the voucher program. POWERS V. MCDONOUGH 25

Most permanent housing available for veterans outside the Campus is also distributed through the HUD-VASH program. The process to obtain permanent housing consists of two steps. First, the VA refers a veteran to a PHA requiring the veteran to demonstrate eligibility by filing a lengthy application that generally requires detailed financial information and documentation. 6 If the PHA deems the veteran eligible, the veteran receives a voucher. Second, the veteran takes the voucher to a landlord and must demonstrate that he or she meets any additional requirements that particular landlord imposes. If the veteran complies with both steps, and housing is available, housing is provided. Step two creates a major obstacle for veterans with significant service-connected disability ratings to obtain housing. Both HUD and private developers count disability benefits as income. Roughly 70% of the HUD-VASH project-based buildings in Los Angeles set aside for veterans require that the veteran make less than 30% of the Area Median Income (“AMI”) to qualify for a unit. A single veteran with no dependents and a 100% disability rating receives approximately $40,000 in disability benefits, which exceeds the Los Angeles’ 30% AMI threshold of $25,000. Veterans with lower service-connected disability ratings, but who receive additional benefits like Social Security, generally have a total income over 30% AMI. The VA

6 Historically, PHAs have complained that the VA is not sending enough referrals—they have vouchers to distribute, but not enough veterans to receive them. For example, although the referral rate of one of the biggest PHA has increased from four per week in 2023 to thirteen per week in 2024, it still falls short of the twenty-five the PHA wants to reach. 26 POWERS V. MCDONOUGH

estimates that one in four veterans receives disability compensation and other benefits that place them over the threshold and disqualifies them from obtaining housing. In an attempt to remedy this income illegibility problem, on the third day of trial, HUD announced a policy change: an alternative definition of annual income that excludes veterans’ service-connected disability benefits as income. Despite this administrative change, the statutory definition of income continued to include disability compensation. The requirements for federal, state, and local tax credits also use the statutory definition of income. Since the eligibility requirements third-party developers impose typically mirror those imposed by federal, state, and local tax credits, veterans with significant service-connected disability ratings remain less likely to fall below the 30% AMI threshold. This problem is not limited to housing on the Campus; of the 46 buildings in Los Angeles providing permanent supportive housing for veterans, 38 have either some or all their units capped at 30 % AMI, significantly reducing the housing supply available to disabled veterans. E. Proceedings Below In November 2022, a putative class of unhoused veterans with severe disabilities sued the VA and HUD. The putative class is defined as “[a]ll homeless veterans with [SMI] or [TBI], who reside in Los Angeles County.” Plaintiffs asserted that the VA and HUD violated Section 504 of the Rehabilitation Act because (1) the VA’s lack of supportive housing denies unhoused veterans with SMI or TBI meaningful access to the VA’s healthcare services (“meaningful access claim”); (2) under Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999), the VA failed to provide class members their disability benefits “in the most POWERS V. MCDONOUGH 27

integrated setting appropriate to their needs,” placing them at a “serious risk of institutionalization” (“Olmstead claim”); and (3) the VA’s policy of contracting with housing developers who impose AMI limitations is facially discriminatory (“AMI claim”) because it discriminates based on disability by counting veterans’ benefits as income. Further, Plaintiffs claimed that the 1888 Deed created a charitable trust and that the VA breached enforceable fiduciary duties to Plaintiffs (“charitable trust claim”). Last, Plaintiffs claimed that certain land-use agreements violated the APA (“APA claim”). 7 1. The Bench Trial and Relevant Rulings In December 2023, the district court denied the VA and HUD’s motion to dismiss, which argued that the Veterans Judicial Review Act (“VJRA”) bars jurisdiction over Plaintiffs’ Rehabilitation Act claims. The district court reasoned that the VJRA bars review of only issues the VA Secretary has actually “considered and decided,” which is not the case here. In May 2024, the district court granted Plaintiffs’ class certification motion. In July 2024, the district court granted summary judgment in Plaintiffs’ favor on their AMI claim and denied the VA and HUD’s motion for summary judgment on Plaintiffs’ meaningful access and Olmstead claims, permitting those claims to proceed to trial. Additionally, the court granted partial summary judgment in Plaintiffs’ favor on their charitable trust claim, finding that the VA assumed “enforceable fiduciary dut[ies]” but leaving the question of breach to proceed to trial.

7 The charitable trust claim and the APA claim were only raised against the VA. 28 POWERS V. MCDONOUGH

In August 2024, the district court presided over a four- week bench trial. After trial, as it relates to Plaintiffs’ meaningful access and Olmstead claims, the district court entered judgment against the VA and HUD. It found that by not providing supportive housing on or near the Campus, the VA “denies veterans with [SMI] or [TBI] meaningful access to the community-based VA healthcare, mental healthcare, and other critical supportive services they need and for which they are eligible,” and “places unhoused veterans at risk of institutionalization.” Regarding the charitable trust claim, the court found that “each of the challenged land-use agreements are in violation of the Leasing Act, and therefore, are a breach of the VA’s fiduciary duty.” The court also found in Plaintiffs’ favor on the APA claim. As relief for Plaintiffs’ meaningful access and Olmstead claims, the district court ordered the VA to construct additional temporary and permanent supportive housing on the Campus, to be overseen by a Special Monitor and adjusted according to need. Specifically, the district court ordered the construction of “1,800 additional permanent supportive housing units” beyond those contemplated by the 2016 Plan, “as well as 750 temporary supportive units to be used [while] permanent housing is constructed.” Regarding the AMI claim, the district court entered judgment against the VA and HUD holding that AMI restrictions on housing are discriminatory and ordered the VA to ensure that “a sufficient number of housing units at the [Campus] are free from discriminatory income restrictions[.]” The court stated that the VA could “contract with developers who rely on . . . conventional financing” rather than Government programs that require income restrictions on the housing they fund. The district court further noted that if that does not cover the entire costs of the POWERS V. MCDONOUGH 29

housing units, then the VA “can directly fund or subsidize permanent supportive housing[.]” Additionally, as relevant here, the district court voided the VA’s leases with Bridgeland and Brentwood School pursuant to the charitable trust and the APA claims. The court also voided UCLA’s lease but solely on the charitable trust theory. Further, the court enjoined the VA from renegotiating those leases. 2. Injunctive Relief Hearings After the district court issued its trial opinion, it held a series of additional hearings regarding the details and scope of its injunctive relief. The district court, the Special Monitor, and the parties worked together to identify suitable sites on the Campus for the building of temporary supportive housing, as well as vendors that could timely provide such housing at a reasonable cost. Additionally, the district court held hearings with intervenor Bridgeland and invited non- party leaseholders—such as Brentwood and UCLA—to the hearings to help plan an exit strategy. Concurrently, Brentwood and Plaintiffs began settlement discussions and ultimately reached one, which the district court preliminarily approved over the VA’s objection. Initially, the district court barred UCLA from using the baseball stadium and ordered Bridgeland to cap its oil well. After further discussions, however, the court modified its injunction, allowing UCLA to use the stadium through the end of the baseball season: July 4, 2025. Additionally, instead of capping the oil well, the district court modified its injunction to prohibit Bridgeland from slant drilling oil on the Campus. 30 POWERS V. MCDONOUGH

3. Appeal These appeals followed. In its appeal, the VA challenges (1) the district court’s jurisdiction to review Plaintiffs’ Rehabilitation Act claims; (2) the district court’s grant of class certification; (3) the judgment in Plaintiffs’ favor on the meaningful access, Olmstead, AMI, and charitable trust claims; 8 and (4) the scope of the district court’s injunctive relief. 9 HUD challenges the district court’s judgment against it on the meaningful access, Olmstead, and AMI claims. In separate appeals, Bridgeland and Brentwood challenge the district court’s invalidation of their leases. Bridgeland also challenges the district court’s order enjoining it from slant-drilling. In two consolidated appeals, non-party UCLA challenges the district court’s invalidation of its lease under the charitable trust claim, and the scope of the district court’s injunction. We address these challenges in turn. II. Standards of Review We review statutory construction de novo. In re Mitchell, 977 F.2d 1318, 1320 (9th Cir. 1992). A district court’s class certification order is reviewed for abuse of discretion. Jimenez v. Allstate Ins. Co., 765 F.3d 1161, 1164 (9th Cir. 2014). Following a bench trial, we review the district court’s findings of fact for clear error and its conclusions of law de novo. Yu v. Idaho State Univ., 15 F.4th 1236, 1241–42 (9th Cir. 2021). The district court’s

8 The VA and HUD obtained a partial stay pending appeal on the charitable trust and Rehabilitation Act claims. 9 Notably, the VA does not challenge the district court’s judgment voiding the land-use agreements under the APA. Nor does it challenge the grant of class certification relating to the AMI claim. POWERS V. MCDONOUGH 31

grant of permanent injunctive relief is subject to three separate standards of review: “we review the legal conclusions de novo, the factual findings for clear error, and the decision to grant a permanent injunction, as well as its scope, for an abuse of discretion.” Oracle USA, Inc. v. Rimini St., Inc., 879 F.3d 948, 964 (9th Cir. 2018) (citation omitted), rev’d in part on other grounds, 586 U.S. 334 (2019). III. Discussion A. The VA and HUD’s Appeal 1. Rehabilitation Act Claims a. Veterans Judicial Review Act and Jurisdiction Upon the VA’s creation, Congress enacted legislation that precluded judicial review of the VA’s benefits determinations. See Veterans for Common Sense v. Shinseki, 678 F.3d 1013, 1020–23 (9th Cir. 2012) (en banc) (“VCS”) (explaining in detail the history of judicial review of the VA’s decision making and the VJRA effect on the scope of that review). After the Supreme Court interpreted the preclusion provision as permitting certain constitutional and legal challenges against the VA to be brought in federal courts, see Traynor v. Turnage, 485 U.S. 535 (1988), Congress enacted the VJRA establishing procedures for judicial review of the VA decisions, VCS, 678 F.3d at 1020– 23; see also VJRA § 301, 102 Stat. 4105, 4113 (1988), codified at Title 38 of the U.S. Code. With the enactment of the VJRA, Congress also broadened the scope of the preclusion provision to limit federal court intervention in the VA’s decision-making 32 POWERS V. MCDONOUGH

process codified at Section 511. See VCS, 678 F.3d at 1022. Section 511 states:

The Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans. Subject to subsection (b), the decision of the Secretary as to any such question shall be final and conclusive and may not be reviewed by any other official or by any court, whether by an action in the nature of mandamus or otherwise.

38 U.S.C. § 511(a). In other words, the VJRA created a jurisdictional channel over certain claims that must follow an administrative process and are kept away from federal courts. But not all claims fall within this jurisdictional constraint. For the following reasons, Plaintiffs’ Rehabilitation Act claims fall outside Section 511’s jurisdictional bar. First, we construe jurisdiction-stripping statutes narrowly. “[E]xpress instructions of the Supreme Court, our precedent, and common sense” all prescribe a narrow construction of jurisdiction-stripping statutes except where their meaning is clear and unequivocal. Acre v. United States, 899 F.3d 796, 800–01 (9th Cir. 2018); see also I.N.S. v. St. Cyr, 533 U.S. 289, 298 (2001) (noting that when Congress creates legislation, there is a “strong presumption in favor of judicial review of administrative action”). The VA argues that the VJRA strips jurisdiction from any action that “affect[s] the provision of benefits.” POWERS V. MCDONOUGH 33

Adopting this interpretation would mean that the VA has exclusive and final authority to review all possible laws and statutes that conceivably touch veterans’ benefits. This cannot be the case. See Broudy v. Mather, 460 F.3d 106, 112 (D.C. Cir. 2006) (noting that Section 511 “does not give the VA exclusive jurisdiction to construe laws affecting the provision of veterans benefits or to consider all issues that might somehow touch upon whether someone receives veterans benefits”). We decline to adopt the VA’s broad reading of the statute. Second, in VCS, we analyzed the scope of Section 511 and its jurisdictional limitations. 678 F.3d at 1022. We held “that § 511 precludes jurisdiction over a claim if it requires the district court to review VA decisions that relate to benefits decisions, including any decision made by the Secretary in the course of making benefits determinations.” Id. at 1025 (internal quotation marks omitted) (quoting Beamon v. Brown, 125 F.3d 966, 971 (6th Cir. 1997) and Broudy, 460 F.3d at 115). “This preclusion extends not only to cases where adjudicating veterans’ claims requires the district court to determine whether the VA acted properly in handling a veteran’s request for benefits, but also to those decisions that may affect such cases.” Id. (citing cases from various sister circuits). Important here, we explained in VCS that if adjudicating a claim “would not possibly have any effect on the benefits [the Plaintiffs] ha[ve] already been awarded,” the VJRA’s jurisdictional preclusion does not apply. Id. at 1023 (internal quotation marks and citation omitted). In VCS, we considered whether we had jurisdiction over class-wide claims that veterans’ advocacy groups brought against the VA challenging the length of time veterans had to wait to receive mental health treatment or to receive 34 POWERS V. MCDONOUGH

disability benefits determinations. Id. at 1017. We also considered whether we had jurisdiction over the VA’s internal agency procedures on due process grounds. Id. As to the first issue, we held that we did not have jurisdiction over the “claim that the VA unreasonably delayed mental health care” because “there is no way for the district court to resolve whether the VA acted in a timely and effective manner in regard to the provision of mental health care without evaluating the circumstances of individual veterans and their requests for treatment, and determining whether the VA handled those requests properly.” Id. at 1026, 1028. However, we determined that we had jurisdiction over the due process claim, which challenged the VA’s lack of procedural safeguards when evaluating veterans’ claims for service-related disability benefits. Id. at 1033–34. Unlike the first claim, this claim would not require us to review decisions affecting the provision of benefits to individual claimants, and thus we had jurisdiction to hear it. Id. at 1034. To support our reasoning, we highlighted our own institutional competence evaluating due process claims relative to the VA’s competence by pointing out the VJRA’s failure to “provide a mechanism” for plaintiffs to bring the claim through its exclusive administrative review. Id. at 1034 n.25, 1035. Here, we have jurisdiction over Plaintiffs’ Rehabilitation Act claims, and Section 511 does not strip us our power to review the claim. Plaintiffs allege that the absence of permanent supportive housing on or near the Campus constitutes discrimination based on disability. Plaintiffs do not argue that housing is a benefit, nor have Plaintiffs requested housing from the Secretary through an administrative process. Rather, Plaintiffs contend that housing is a reasonable accommodation that is necessary for POWERS V. MCDONOUGH 35

them to access the benefits the VA has already conferred to them. Thus, reviewing Plaintiffs’ Rehabilitation Act claims does “not require the district court to decide whether any veterans whose claims the Secretary rejected were entitled to benefits or to revisit any decisions made by the Secretary in the course of making benefits determinations.” Id. at 1030 n.21 (internal quotations and citations omitted). In other words, the district court’s adjudication of Plaintiffs’ Rehabilitation Act claims did not require it to second-guess the VA’s previous benefits determinations. Rather, the district court took the VA’s previous determination of “law and fact” about veterans’ individual benefits determinations as a given and analyzed the Plaintiffs’ ability to reach those previously awarded benefits by looking at Plaintiffs’ rights under a separate and distinct statutory framework that is not under the VA’s purview: the Rehabilitation Act. Third, the VA argues that Congress enacted the VJRA to overrule Traynor’s holding that federal courts could review a claim that the “VA’s regulation conflicted with § 504 of the Rehabilitation Act.” Traynor is distinguishable. In Traynor, the plaintiffs sought benefits under the G.I. Bill, a statute that the VA administered. See Traynor, 485 U.S. at 538–39. Here, however, Plaintiffs assert claims under the Rehabilitation Act, a law of general applicability. Congress immediately reacted to Traynor because it viewed the Supreme Court as second-guessing the Secretary’s determinations, thereby breaching the jurisdictional restraints prescribed by Section 511. That is not the case here. In this case, Plaintiffs are not challenging the Secretary’s prior benefits determinations because no such request for supportive housing was, or could be, made by the veterans. 36 POWERS V. MCDONOUGH

Fourth, if we were to hold that the VJRA strips us and the district court of jurisdiction in this case, we would leave veterans without judicial recourse to enforce their rights under the Rehabilitation Act. Neither the VJRA nor its implementing regulatory framework authorizes the VA to review veterans’ Rehabilitation Act claims. In fact, the Veterans Court has recognized that “neither the Board nor [the Veterans Court] is authorized to hear actions brought under” the Rehabilitation Act or the American with Disabilities Act (“ADA”). Camacho v. Nicholson, 21 Vet. App. 360, 366 (2007). The VA suggests that veterans should submit claims requesting housing through the VA’s ordinary benefits determination process yet fails to offer support demonstrating that this avenue for redress is indeed available to veterans. It is difficult to imagine how the VA would be able to provide veterans with permanent housing through an administrative process when housing is not a designated benefit under the VA’s governing laws. See 38 U.S.C. § 20.3. Moreover, unlike federal courts, the VA’s administrative claims-processing structure lacks the ability to produce an expansive and detailed judicial record that would otherwise provide the Federal Circuit Court a sufficient record for meaningful review. See Axon Enter., Inc. v. Fed. Trade Comm’n, 598 U.S. 175, 185 (2023) (noting that when Congress creates a special process that directs judicial review of agency decisions into special channels, it does so in a manner that makes sure agencies are equipped to effectively “fill[] in for the district court[’s]” job). In sum, because Plaintiffs are not collaterally attacking the VA’s individual benefits determinations, the VJRA does not strip federal courts of jurisdiction to hear Plaintiffs’ Rehabilitation Act claims. POWERS V. MCDONOUGH 37

b. Class Certification The VA challenges the district court’s class certification for Plaintiffs’ Rehabilitation Act claims. Specifically, the VA challenges the commonality of Plaintiffs’ meaningful access and Olmstead claims. We address these claims only and do not reach the issue of class certification for the remaining claims. The commonality requirement in class certification is satisfied when class members’ claims “depend upon a common contention . . . . of such a nature that is capable of class-wide resolution.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). In other words, “[w]hat matters to class certification . . . is not the raising of common ‘questions’ . . . but, rather, the capacity of a class-wide proceeding to generate common answers apt to drive the resolution of the litigation.” Id. at 350 (citations omitted). Commonality does not require that “every question in the case, or even a preponderance of questions, is capable of class-wide resolution. So long as there is ‘even a single common question,’ a would-be class can satisfy the commonality requirement.” Wang v. Chinese Daily News, Inc., 737 F.3d 538, 544 (9th Cir. 2013) (internal quotation marks and citations omitted). We have held that the commonality requirement is satisfied “where the lawsuit challenges a system-wide practice or policy that affects all of the putative class members.” Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir. 2001), overruled on other grounds by Johnson v. California, 543 U.S. 499 (2005). The VA argues that Plaintiffs failed to meet the commonality element for their meaningful access and Olmstead claims because these claims turn on each veteran’s individual circumstances and thus cannot generate common 38 POWERS V. MCDONOUGH

answers that will resolve the litigation. We disagree. Plaintiffs’ class is defined as homeless veterans with SMI or TBI, and they allege that the VA’s failure to provide supportive housing on or near the Campus results in systemic discrimination against them. As a result, members of Plaintiffs’ putative class are denied meaningful access to necessary healthcare services and placed at serious risk of institutionalization. See Payan v. Los Angeles Cmty. Coll. Dist., 11 F.4th 729, 733–35 (9th Cir. 2021) (noting that a meaningful access claim may challenge “systemic failures”); Arc of Washington State Inc. v. Braddock, 427 F.3d 615, 618 (9th Cir. 2005) (highlighting that, with respect to integration claims under Olmstead, “states are required to provide care in integrated environments for as many disabled persons as is reasonably feasible”). Plaintiffs’ claim that the VA’s “past and current practice” of not providing permanent housing to the class of veterans represents discrimination based on disability, placing them squarely within the “system-wide practice or policy” requirement for commonality. Armstrong, 275 F.3d at 868. The VA’s contention that to adjudicate these claims, the court will have to analyze every single Plaintiffs’ situation individually is unavailing. We have held that in civil-rights suits challenging system-wide practices or policies, “individual factual differences among the individual litigants or groups of litigants will not preclude a finding of commonality.” Id. (citations omitted); see also Gonzalez v. United States Immigr. & Customs Enf’t, 975 F.3d 788, 807 (9th Cir. 2020) (“The existence of shared legal issues with divergent factual predicates is sufficient.” (citation omitted)). In Armstrong, we affirmed class certification of a group of prisoners and parolees who suffered from six different POWERS V. MCDONOUGH 39

categories of disability. Armstrong, 275 F.3d at 854. The plaintiffs claimed that California’s policies and practices for parole and parole-revocation discriminated against class members based on their disabilities. Id. at 854–55. Like the VA here, the defendant in Armstrong argued that the wide variation in the nature of the particular class members’ disabilities precluded a finding of commonality. Id. at 868. We disagreed, holding that individual factual differences among the class members are not sufficient to negate a finding of commonality. Id. Because class members suffered a “similar harm” from the defendant’s “failure to accommodate their disabilities, . . . . [t]he commonality requirement [wa]s met.” Id. So, too, here. Plaintiffs challenge the VA’s failure to provide permanent housing on or near the Campus, a system- wide practice that Plaintiffs claim is discriminatory and that affects all of the putative class members. This suffices for commonality purposes. 10 See id. Accordingly, the district court did not abuse its discretion in certifying Plaintiffs’ class for the meaningful access and Olmstead claims. c. Meaningful Access Claim The Rehabilitation Act guarantees “meaningful access” to programs or activities receiving federal financial assistance for otherwise qualified handicapped individuals. Alexander v. Choate, 469 U.S. 287, 301 (1985). Any recipient of federal financial assistance, and any federal agency in conducting programs or activities under the Act, generally must “operate each program or activity so that the

10 To be sure, individual veterans in the class have different needs according to their respective disabilities; but those differences merely relate to the degree to which each class member was denied meaningful access to healthcare and their risk of institutionalization. 40 POWERS V. MCDONOUGH

program or activity, when viewed in its entirety, is readily accessible to and usable by [persons with disabilities].” 28 C.F.R. §§ 39.150(a), 41.57(a). “[T]o assure meaningful access, reasonable accommodations in the . . . program or benefit may have to be made.” Alexander, 469 U.S. at 301. Here, the district court found that Plaintiffs—disabled veterans with SMI or TBI—require access to on-site healthcare at the Campus; yet without permanent supportive housing on or near the Campus, Plaintiffs are unable to access such treatment. Accordingly, the district court concluded that the VA denied Plaintiffs “meaningful access” to their healthcare. As with the Olmstead and AMI claims, the VA raises only factual challenges to the district court’s judgment on this claim. The VA contends that while housing on or near the Campus may make it easier for veterans to access healthcare facilities, Plaintiffs do not lack “meaningful access.” Although this may be one interpretation of the evidence, that is not the standard on appeal. We must determine whether the district court’s findings of fact are “illogical, implausible, or without support in inferences from the record.” Yu, 15 F.4th at 1241–42. They are not. The evidence in the record supports the district court’s findings. For example, Dr. Steven Edward Braverman, former VAGLAHS Director, testified that the bulk of specialty care for veterans is only located on the Campus and that the Campus is the referral point for veterans’ specialty care, which is often what the class of veterans require. Dr. Benjamin Henwood, professor of Social Work and Director of the Homelessness Center at the University of Southern California, testified that unhoused veterans have “difficulty accessing healthcare when they don’t have a stable place to POWERS V. MCDONOUGH 41

live.” Dr. Jonathan Edward Sherin, former Medical Center’s Chief of Psychiatry and Mental Health Programs, testified that there needs to be permanent housing for veterans on or near the Campus to allow veterans to have more meaningful engagement with the healthcare system. Plaintiff Laurieann Wright testified that, due to her disabilities, she requires specialty care that is only provided on the Campus and that without housing on the Campus, she cannot access her healthcare benefits because it is very difficult for her to commute. Plaintiff Lavon Johnson testified that since living on the Campus, he gets regular visits from his nurse, doctors, and healthcare workers who could not find him when he was unhoused. Because the district court’s findings of fact are not “illogical, implausible, or without support in inferences from the record,” the court did not err in its interpretation of the record. Id. d. Olmstead Claim The Rehabilitation Act’s integration mandate states that “[a] public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d). In 1999, the Supreme Court addressed this mandate in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999) 11 and held that covered entities “are required to provide community-based treatment for persons with mental disabilities when . . . treatment professionals determine that such placement is appropriate, the affected person does not

11 Although the Olmstead case decided an issue related to the ADA, courts interpret the Rehabilitation Act and the ADA similarly. See Zukle v. Regents of Univ. of California, 166 F.3d 1041, 1045 n.11 (9th Cir. 1999). 42 POWERS V. MCDONOUGH

oppose such treatment, and the placement can be reasonably accommodated, taking into account the resources available to the [agency] and the needs of others with mental disabilities.” Id. at 607. To prove an Olmstead claim, “a plaintiff need only show that the challenged [agency] action creates a serious risk of institutionalization.” M.R. v. Dreyfus, 697 F.3d 706, 734 (9th Cir. 2012). Here, the district court properly held that the VA violated the Rehabilitation Act by not providing class members their disability healthcare benefits “in the most integrated setting appropriate to their needs,” placing “unhoused veterans at risk of institutionalization.” There is sufficient supporting evidence in the record for this conclusion. For instance, Plaintiff Fields testified that the VA’s failure to provide supportive housing puts veterans in a never-ending cycle of jail and hospitalization. Dr. Henwood also testified that the absence of stable housing places veterans with certain disabilities in an “institutional circuit” because they use a lot of “institutional care on and off,” including hospitals, jails and prisons, and treatment programs. Likewise, Dr. Sherin acknowledge that there are “too many veterans . . . cycling in between homelessness and jails and the hospitals.” The record also shows that the Medical Center on the Campus is one of the most well-equipped in the nation, if not the best, and often the only one in the greater Los Angeles area that can provide the necessary care for the class of veterans. The evidence shows that without supportive housing near or at the Campus, veterans are forced to either accept institutionalization or go without services. See Olmstead, 527 U.S. at 597 (holding that “[u]njustified isolation . . . is properly regarded as discrimination based on disability”). The VA argues that Olmstead has no place in Plaintiffs’ claims because if the VA provides supportive housing on the POWERS V. MCDONOUGH 43

Campus, the veterans would arguably be more segregated from the broader community, not less. The record shows otherwise. First, Plaintiffs are requesting supportive housing “on or near the Campus,” not just on the Campus. Second, Plaintiffs Petitt and Wright testified that they want to live on or near the Campus because other veterans live there, and they would be integrated into a community. Dr. Sherin testified that the goal of permanent supportive housing is to create a “connective tissue of community” for veterans, which includes “places to recreate, places to socialize, [and] places for opportunities and self-governance.” As these Plaintiffs testified, they want to live in a community where they can harvest a sense of belonging while surrounded by other veterans who understand their struggles and where healthcare is readily available. Homelessness provides the opposite and places the class of veterans at serious risk of institutionalization. See Olmstead, 257 U.S. at 600 (noting that unnecessary segregation “perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life”). Thus, the district court did not err in finding in Plaintiffs’ favor on their Olmstead claim. e. AMI Claim The VA also challenges the district court’s finding that the VA’s policy of contracting with third-party housing developers who impose income limitations and count veterans’ disability benefits as income is facially discriminatory under the Rehabilitation Act. “A facially discriminatory policy is one which on its face applies less favorably to a protected group.” Cmty. House, Inc. v. City of Boise, 490 F.3d 1041, 1048 (9th Cir. 2007). A facially discriminatory policy is a per se violation of the 44 POWERS V. MCDONOUGH

Rehabilitation Act. Bay Area Addiction Rsch. & Treatment, Inc. v. City of Antioch, 179 F.3d 725, 735 (9th Cir. 1999); see also Lovell v. Chandler, 303 F.3d 1039, 1054 (9th Cir. 2002). The VA does not dispute that under its current system, the most disabled veterans may be priced out of housing. A VA senior executive homelessness agent admitted as much. Rather, it argues that since the system treats all income equally, it is not per se discriminatory. Regardless of whether income is treated equally, disability is used as a basis to discriminate against veterans. Disability benefits are directly correlated to a veteran’s disabilities—the more disabled a veteran is, the more disability benefits he or she receives. A veteran with 100% disability rating does not qualify for most housing under this program because they receive more than 30% AMI in disability benefits, but a less disabled veteran who received less in disability benefits does. This constitutes facial discrimination. See Townsend v. Quasim, 328 F.3d 511, 517–18 (9th Cir. 2003) (holding that defendant’s failure to provide long term care services in a particular setting to one group of disabled individuals but not another, solely on the basis of income, was discrimination in violation of the ADA). * * * * The district court did, however, err in entering judgment against HUD for Plaintiffs’ meaningful access, Olmstead, and AMI claims. The meaningful access and the Olmstead claims are rooted in Plaintiffs’ healthcare benefits, which the VA is responsible for administering. See 38 U.S.C. § 303. HUD has no say in the way the VA administers its laws. As to the AMI claim, the claim is moot after HUD announced a policy change excluding veterans’ service-connected POWERS V. MCDONOUGH 45

disability benefits as income when determining supportive housing eligibility, and Plaintiffs concede as much. Thus, judgment against HUD is vacated. 2. Charitable Trust Claim a. Standing The Attorney General has primary, though not exclusive, responsibility for the supervision and enforcement of charitable trusts. In California, “[a] suit for the enforcement of a charitable trust may be maintained only by the Attorney General or other appropriate public officers or by a co- trustee or successor trustee, by a settlor, or by another person who has a special interest in the enforcement of the trust.” Autonomous Region of Narcotics Anonymous v. Narcotics Anonymous World Servs., Inc., 292 Cal. Rptr. 3d 851, 861 (Ct. App. 2022) (“ARNA”) (quoting Restatement (Third) of Trust § 94) (emphasis removed); see also Holt v. Coll. of Osteopathic Physicians & Surgeons, 394 P.2d 932, 934–37 (Cal. 1964) (creating the special interest standing and allowing minority trustees to sue majority trustees); L.B. Rsch. & Educ. Found. v. UCLA Found., 29 Cal. Rptr. 3d 710, 716–17 (Ct. App. 2005) (relying on Holt, allowed a donor to sue where the charitable gift came with a reversionary interest); Patton v. Sherwood, 61 Cal. Rptr. 3d 289, 291 (Ct. App. 2007) (allowing a settler to sue because he had reserved the power to object to an accounting in the trust instrument). Thus, an intended beneficiary, such as a disabled veteran, would typically not have standing to sue for breach of fiduciary duties of the charitable trust unless he has a special interest in the trust. In adopting, and later applying, special interest standing, courts have emphasized that its application “involve[s] a balancing of policy concerns and objectives.” ARNA, 292 46 POWERS V. MCDONOUGH

Cal. Rptr. 3d at 861 (citation omitted). The limited application of this concept “arises from the need to protect the trustee from vexatious litigation,” by a large, changing, and uncertain class of the public to be benefitted. Patton, 61 Cal. Rptr. 3d. at 291. But there is also the concern that due to the Attorney General’s “limitations (of information and resources, plus other responsibilities and influence)” charitable trusts will have no oversight which means they can “lapse into inactivity and neglect and can be victimized by trustee breaches of trust.” ARNA, 292 Cal. Rptr. 3d at 861. Thus, allowing others with a special interest to sue can “bring to light conduct detrimental to a charitable trust so that remedial action may be taken.” Holt, 394 P.2d at 935– 36. Here, the VA argues that Plaintiffs do not have special interest standing 12 as any trust created under the 1888 Deed would benefit a “vast, ill-defined population—roughly speaking, all Veterans in the Western United States.” Although this is true, the critical question is whether this class of veterans who are suing have a sufficient special interest to “enforce the trust on their own behalf.” ARNA, 292 Cal. Rptr. 3d at 861. Here, the intended beneficiaries of the trust are veterans with disabilities. But the putative class is more specific—unhoused veterans with severe disabilities and mental illnesses for whom receipt of the trust’s benefits (i.e., supportive housing and healthcare) can make the difference between life and death. We have difficulty imagining a more special interest than that.

12 The VA and Plaintiffs cite He Depu v. Yahoo! Inc., 950 F.3d 897 (D.C. Cir. 2020), which is not controlling authority, and neither party engages with California’s common law application of special interest standing. POWERS V. MCDONOUGH 47

Additionally, balancing the policy concerns and objectives supports finding special interest standing in this specific case. See ARNA, 292 Cal. Rptr. 3d at 861. The record shows that the VA has mismanaged the Campus for decades by first selling off the Campus’s land to third parties until only about half of the donated land was left. The VA only stopped this practice because Congress prohibited it. Then, the VA leased the Campus’s land to third parties for well below the appraised market value and in certain cases even leased it for free. Also, as explained infra, the VA’s current leases with third parties violate the Leasing Act because those leases do not principally benefit veterans. Plaintiffs have complained about the VA’s deficiencies for more than a decade and notwithstanding the Valentini settlement, the VA has consistently failed to comply with its pledge to return the Campus to its intended purpose of benefitting disabled veterans. Further, this and the Valentini litigations have been widely and publicly covered, and the Attorney General has not taken any steps to ensure the charitable trust is being properly managed. Thus, bringing these problems to light, along with trying to address the issues unhoused veterans face, is beneficial for the public and confers a special interest sufficient to allow this class of veterans to sue to enforce this charitable trust. See ARNA, 292 Cal. Rptr. 3d at 861 (“When charitable trusts are badly or corruptly managed, underenforcement of the original charitable purpose disserves the public interest in furthering social betterment.”). Having found that Plaintiffs have special interest standing to sue, we now address the charitable trust claim on the merits. 48 POWERS V. MCDONOUGH

b. Judicially Enforceable Fiduciary Duties 13 “The United States or a State has capacity to take and hold property in trust, but in the absence of a statute otherwise providing the trust is unenforceable against the United States or a State.” Restatement (Second) of Trusts § 95. The Government owes judicially enforceable duties “only to the extent it expressly accepts those responsibilities.” Arizona v. Navajo Nation, 599 U.S. 555, 564 (2023) (quoting United States v. Jicarilla Apache Nation, 564 U.S. 164, 177 (2011)). “Whether the Government has expressly accepted such obligations ‘must train on specific rights-creating or duty-imposing’ language in a treaty, statute, or regulation.” Id. (citation omitted) Plaintiffs allege, and the district court ruled, that the VA accepted judicially enforceable fiduciary duties through the Leasing Act and its 2021 Amendment. By its terms, the Leasing Act “authorize[s] the Secretary of [VA] to enter into certain leases at the [Campus], to make certain improvements to the enhanced-use lease authority of the Department, and for other purposes.” Further, the Leasing Act prohibits the VA from entering leases that do not provide “supportive housing . . . that principally benefit[s] veterans and their families,” and requires that “the provision of services to veterans [be] the predominant focus of the activities . . . during the term of the lease.” Leasing Act §§ 2(b). Contrary to Plaintiffs’ assertion, the aforementioned language does not demonstrate that the

13 The parties dispute whether the 1888 Deed created a charitable trust. But we need not reach this issue because even if it did, the VA does not owe judicially enforceable fiduciary duties, and therefore Plaintiffs cannot succeed on the merits of this claim. POWERS V. MCDONOUGH 49

United States unambiguously and expressly accepted judicially enforceable trust responsibilities. While the United States was free to accept the land gifted to it by the 1888 Deed, see United States v. Burnison, 339 U.S. 87, 89 (1950), the Leasing Act does “not unambiguously provide that the United States has undertaken full fiduciary responsibilities” as to management of the Campus, see United States v. Mitchell, 445 U.S. 535, 542 (1980). Plaintiffs fail to identify provisions in the Leasing Act that include “specific rights-creating or duty- imposing language.” Navajo Nation, 599 U.S. at 564. What is more, nothing in the Leasing Act suggests that any such duty is judicially enforceable. To the contrary, the Leasing Act expressly contemplates administrative and political remedies if the VA is found to be noncompliant “with all Federal laws relating to leases and land use at the Campus.” See, e.g., Leasing Act § 2(h)(1) (charging the VA OIG with determining the VA’s compliance with the Leasing Act); id. (providing that if the VA is found not in compliance, the VA “may not enter into any lease or land-sharing agreement at the Campus, or renew any” non-compliant lease until the Secretary of the VA certifies to Congress that all of the VA OIG’s recommendations have been implemented”); but see 2 U.S.C. § 159 (providing that the Library of Congress Trust Fund Board shall have “all the usual powers and obligations of a trustee” and that the Board “may be sued” in the district court “for the purpose of enforcing the provisions of any trust accepted by it”). Plaintiffs alternatively argue that because the Leasing Act creates duties that mirror those created by a trust at common law that is sufficient to impose enforceable fiduciary duties. Not so. The Supreme Court expressly rejected Plaintiffs’ argument in Navajo Nation, holding that 50 POWERS V. MCDONOUGH

the United States’s trust obligations are “established and governed by treaty, statute, or regulation, rather than by the common law of trusts.” 599 U.S. at 564 n.1 (“[T]he trust obligations of the United States . . . are established by Congress and the Executive, not created by the Judiciary.”). The district court thus erred in finding that the Leasing Act and its 2021 Amendment imposed judicially enforceable fiduciary duties on the VA. We therefore reverse the district court’s judgment in favor of Plaintiffs on their charitable trust claim. Additionally, the parties agree that judgment on Plaintiffs’ charitable trust claim was the only basis for which the district court invalidated UCLA’s lease and enjoined UCLA. Because we are reversing judgment on Plaintiffs’ charitable trust claim, we dismiss UCLA’s consolidated appeals as moot and vacate any injunctive relief with respect to UCLA’s lease and services. 14 15 See Tinoqui-Chalola Council of Kitanemuk & Yowlumne Tejon Indians v. U.S. Dep’t of Energy, 232 F.3d 1300, 1303 (9th Cir. 2000). To the extent the district court voided Brentwood and Bridgeland’s leases and ordered injunctive relief based on Plaintiffs’ charitable trust claim, we vacate that part of the district court’s judgment as well. B. Brentwood School’s Appeal 1. Interpretation of the Leasing Act Brentwood School challenges the district court’s order voiding its lease and asserts that the district court

14 UCLA’s motion for a stay pending appeal is denied as moot. Dkt. 30. 15 We express no opinion as to the impact of our opinion on the relationships between Plaintiffs, the VA, and UCLA. POWERS V. MCDONOUGH 51

misinterpreted the Leasing Act. 16 “The APA specifies that courts, not agencies, will decide ‘all relevant questions of law’ arising on review of agency action . . . even those involving ambiguous laws.” Loper Bright Enters. v. Raimondo, 603 U.S. 369, 371 (2024). Thus, agency interpretation of statutes “are not entitled to deference.” Id. at 392. In interpreting statutes, “the [c]ourt relies on traditional rules of statutory interpretation.” POM Wonderful LLC v. Coca-Cola Co., 573 U.S. 102, 112 (2014). The analysis begins and ends with the statutory text. Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 251 (2010). As relevant here, the Leasing Act states that the VA Secretary may carry out,

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: (A) The promotion of health and wellness, including (B) nutrition and spiritual wellness. (B) Education. (C) Vocational training, skills building, or other training related to employment. (D) Peer activities, socialization, or physical recreation. (E) Assistance with legal issues and Federal

16 We reject Plaintiffs’ argument that Brentwood is judicially estopped from bringing this appeal. We find Brentwood did not misrepresent its intentions below and its position is consistent on appeal. See Perez v. Discover Bank, 74 F.4th 1003, 1008 (9th Cir. 2023) (“A party’s current position is clearly inconsistent with its previous position if the current position contradict[s] the previous position.” (internal quotation marks omitted)). 52 POWERS V. MCDONOUGH

benefits. (F) Volunteerism. (G) Family support services, including child care. (H) Transportation. (I) Services in support of one or more of the purposes specified in subparagraphs (A) through (H).

Leasing Act § 2(b)(2) (emphasis added). It defines “principally benefits veterans and their families” as,

[S]ervices (A) provided exclusively to veterans and their families; or (B) that are designed for the particular needs of veterans and their families, as opposed to the general public, and any benefits of those services to the general public is distinct from the intended benefit to veterans and their families.

Id. at § 2(I)(1)(A)–(B). Services that “principally benefit veterans” excludes those “services in which the only benefit to veterans and their families is the generation of revenue for the [VA].” Id. § 2(I)(2). The district court ruled that the plain text of the Leasing Act is unambiguous and found that the phrase “principally benefit veterans and their families” refers to and modifies the sentence’s subject, “lease,” and not “services.” Thus, the district court concluded that “Section 2(b)(2) of the Leasing Act, by its plain text, requires that the underlying lease’s predominant purpose is to provide services that principally benefit veterans and their families.” Brentwood argues that the district court erred in its interpretation because the phrase “principally benefit veterans and their families” clearly POWERS V. MCDONOUGH 53

modifies the word “services” by explaining which “services” are required. Beginning with the text, both parties are correct that the text is plain and unambiguous. “The rules of grammar govern statutory interpretation unless they contradict legislative intent or purpose.” Nielsen v. Preap, 586 U.S. 392, 408 (2019) (cleaned up). Here the question is whether the restrictive clause “principally benefit veterans and their families” modifies “lease” or “services.” See United States v. Nishiie, 996 F.3d 1013, 1021–22 (9th Cir. 2021) (noting that the word “that” is often used to introduce restrictive or limiting clauses which are essential to the meaning of the sentence and are not set off by commas). Since here the restrictive clause is not set off by commas, “common grammar rules suggest that Congress intentionally tied it to the last antecedent,” id. at 1022, thus modifying “services,” not “leases.” This supports Brentwood’s reading of the statute which would mean that the lessees’ services, not the lease, principally benefit veterans. But this reading would create an absurd result. See Lamie v. U.S. Tr., 540 U.S. 526, 536 (2004) (noting that if the plain meaning of the text would create an absurd result, the court would have to treat the statute as ambiguous). Under this reading, Congress would have authorized the VA to enter into any land-use lease with third parties as long as the leaseholder provides some services that principally benefit veterans. For example, given that the Campus sits on one of the most exclusive and expensive areas in Los Angeles, the VA would be authorized to enter into a land- use lease agreement with a luxurious hotel to build a resort for private use so long as they provide some services that principally benefit veterans. That cannot be the case; especially considering the legislative context of the Leasing 54 POWERS V. MCDONOUGH

Act. See Nishiie, 996 F.3d at 1024 (“In addition to exploring the text of the statute itself, we examine the relevant statutory context.” (citation omitted)). Congress created the Leasing Act in response to the Valentini lawsuit and the VA’s 2016 Plan to refocus the Campus to provide services to veterans. See H.R. Rep. 114– 570, 6 (“To assist VA in carrying out the tenets of the [2016 Plan], Section 2 of the bill would authorize VA to carry out the certain leases on the [Campus]”). The Congressional Committee Report, under a section called “Background and Need for Legislation,” described the leases the Valentini court had found unlawful—which included Brentwood’s previous lease—as “providing services primarily to the general public” and that “any use or benefit of the leased space by veterans or their families was ancillary.” Id. at 5. The report further stated that the Committee believed that if the [2016 Plan] was fully implemented, it would “correct the years of neglect, misuse, and mismanagement” of the Campus and would refocus the VA’s efforts at the Campus “on veterans in need of services—particularly those who are homeless or at risk of homelessness.” Id. at 6. This makes clear that the force that drove Congress to create the Leasing Act was to assist the VA to refocus the Campus to its historic intended use—authorizing specific land-use agreements only when they principally benefit veterans and their families. Adopting Brentwood’s interpretation would potentially allow for leases that, although providing some services that benefit veterans, are really “ancillary” to the services provided to the general public or others, which is the case under Brentwood’s current lease. Congress could not have intended to allow land-use agreements that principally benefit nonveterans overall and only provide POWERS V. MCDONOUGH 55

ancillary services to veterans. Brentwood’s arguments to the contrary are ineffective. Thus, the district court correctly interpreted the Leasing Act as requiring that the underlying lease’s predominant purpose is to provide services that principally benefit veterans and their families. 2. Brentwood’s Lease Violates the Leasing Act and the APA To comply with the Leasing Act, a land-use agreement must (1) be for real property, (2) be shorter than 50 years, (3) be to a third party, and (4) provide services that principally benefit veterans and their families. Leasing Act § 2(b)(2). The parties only contest element number four. The record shows that Brentwood’s lease violates the Leasing Act because the underlying predominant purpose of the lease does not “principally benefit veterans.” Brentwood allows veterans to use its athletic facilities, but Brentwood, not the VA, decides the time and manner veterans are to use them. Not surprisingly, Brentwood allows veterans to use its facilities only when it is more convenient for its students. For example, veterans are allowed to use the pool on Mondays, Wednesdays, and Fridays from 5:30 a.m. to 7:30 a.m. and on Saturdays and Sundays from 11:00 a.m. to 3:00 p.m. Brentwood also allows veterans to use its track on Wednesdays from 5:00 a.m. to 11:00 a.m. As the district court correctly found, this results in highly restricted access for veterans in favor of access for students during school hours and times for team practices and competitions. Likewise, although Brentwood provides shuttle transportation to the athletic facilities for veterans on the Campus, the hours of shuttle operation—from 9:00 a.m. to 56 POWERS V. MCDONOUGH

2:00 p.m.—do not align with the times Brentwood allows veterans access to its facilities. Considering the restricted times Brentwood allows veterans to access its facilities and the lack of adequate transportation, veterans’ access to Brentwood’s athletic facilities is de minimis compared to the access Brentwood students enjoy. Since the lease principally benefits Brentwood’s students, not veterans, it violates the Leasing Act. As a result, the lease also violates the APA. The APA requires a court “to set aside agency action” that is “not in accordance with law” or that is “in excess of statutory jurisdiction, authority, or limitations.” 5 U.S.C. § 706. Pursuant to the APA, an agency's final action must be upheld unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Id. at § 706(2)(A). Since Brentwood’s lease is contrary to statutory authority, it is in violation of the APA. Thus, the district court correctly voided Brentwood’s lease under the APA. C. Bridgeland Resources, LLC’s Appeal Making very similar arguments to those Brentwood made, Bridgeland also argues that the district court erred in its interpretation of the Leasing Act. But as explained above, the district court did not err in determining that the Leasing Act requires that the land-use agreement’s predominant purpose is to provide services that principally benefit veterans. See Leasing Act § 2(b)(2). Under this interpretation, Bridgeland’s revocable license violates the Leasing Act. Bridgeland argues that the revocable license is veteran-focused because they do not need the license to slant drill oil—they may get the license through the BLM—“the Government and veterans give up virtually nothing in exchange for a ‘generous’ royalty.” That POWERS V. MCDONOUGH 57

is not so. As Bridgeland conceded, they entered into the revocable licensing agreement with the VA because it protects them from the danger of future litigation. Thus, the license is quite valuable to Bridgeland. In any event, the test is whether the revocable license’s purpose is to “principally benefit” veterans. The record shows it is not. The revocable license’s purpose is to allow Bridgeland to pass underneath the Campus’s grounds to slant drill oil. The only thing veterans receive in return is a 2.5 percent royalty donated to a nonprofit who later uses that donation to provide transportation services to veterans; thus, the transportation services veterans receive are ancillary to drilling oil and gas. As a result, the revocable license violates the Leasing Act. Likewise, since the revocable license is contrary to statutory authority, it also violates the APA. Accordingly, the district court correctly voided Bridgeland’s revocable license under the APA. D. Scope of Injunctive Relief Having discussed the merits of the parties’ claims above, now we turn into the propriety of the district court’s permanent injunction. 1. Relief for Rehabilitation Act Claims a. Relief for Meaningful Access and Olmstead Claims As relief for the meaningful access and Olmstead violations, the district court ordered the VA to construct 1,800 permanent housing units and 750 temporary housing units to remedy its discrimination. The VA, however, may be excused from discrimination if it can demonstrate that making the modifications the district court ordered would fundamentally alter the nature of its services, programs, or 58 POWERS V. MCDONOUGH

activities. See Townsend, 328 F.3d at 518. Olmstead makes clear that the regulatory language only requires entities to make reasonable changes in existing policies to accommodate an individual’s disabilities. Olmstead, 527 U.S. at 603. In evaluating this defense, we “must take into account financial and other logistical limitations on a[n agency]’s capacity to provide integrated services to the disabled.” Townsend, 328 F.3d at 519. The VA argues that constructing housing on the Campus would fundamentally change its program by forcing it to provide one single type of housing, thereby limiting veterans’ options to decide where to live. According to the VA, this would harm the community of veterans the VA serves. We disagree. The district court’s order to build additional housing units simply expands—not alters—the program. There are approximately 3,000 veterans who do not have any type of housing. Constructing additional housing would not “limit” veterans’ choices, it would expand them. Similarly, housing veterans on the Campus would not harm other veterans or create a “less hospitable” environment on the Campus because, as the record shows, many veterans want to live in a community with other veterans because they understand each other’s struggles. Most importantly, the record supports the district court’s finding that it is the absence of housing that creates a dangerous and inhospitable environment for veterans on or near the Campus. See L.A. All. for Hum. Rts. v. Cnty. of L.A., 14 F.4th 947, 955 (9th Cir. 2021) (noting that L.A.’s homelessness crisis has resulted in “rising deaths of [the] unhoused, . . . unaddressed mental health disorders, . . . and the spread of uncommon diseases due to lack of sanitation”). POWERS V. MCDONOUGH 59

As for budgetary constraints, the VA has not shown how building the 1,800 permanent housing units and the 750 temporary units is financially unreasonable. Building the temporary housing has been estimated to cost $100 million, which is only 0.02% of the VA’s $407 billion annual budget for 2024. Notably, the VA failed to request any funding from Congress to construct supportive housing for veterans notwithstanding its pledge to provide housing for veterans’ pursuant to the Valentini lawsuit, and ended Fiscal Year 2024 “with unspent, carryover funds.” The district court properly considered the VA’s financial limitations. It found that the necessary investment in this construction would be “sequenced throughout [a] period” of years to allow the VA to administer its funding. The district court also found that the reduction in costs homelessness caused may “entirely offset” the construction costs. Additionally, the VA had recently “invested over $100 million to upgrade and expand . . . infrastructure” on the Campus to support the construction of housing according to the VA’s 2016 Plan. Lastly, the district court retained jurisdiction to adjust the amount of housing the VA is required to construct to make sure that the number coincides with housing needs. In short, the VA fails to show that complying with the district court’s order would fundamentally alter its programs. b. Relief for AMI Claims The VA also contends that the district court abused its discretion by ordering the VA to build housing itself if it could not find developers willing to refrain from 60 POWERS V. MCDONOUGH

discrimination. 17 Contrary to the VA’s assertion, the district court did not “order” the VA to directly fund or subsidize housing. Instead, the district court merely suggested that it was an option available to the VA to remedy the discrimination. The district court instead ordered the VA to “ensure a sufficient number of housing units at [the Campus] are free from income restrictions.” It also ordered the VA, Plaintiffs, and the Special Monitor to determine the precise number of necessary units. After further hearings regarding the scope of the injunction, the district court instructed the VA to contract with developers that rely on conventional financing—free from income restrictions. Then, the district court suggested that only if traditional financing could not cover the entire cost, the VA could directly fund or subsidize the housing. 18 Thus, there is no abuse of discretion in pointing out to the VA the various tools it can utilize to refrain from discriminating any further against this class of veterans. 2. Relief for the APA Claims a. Renegotiation of Unlawful Land-Use Agreements For the reasons explained supra, the district court correctly concluded that the VA’s land-use agreements with Brentwood, Safety Park, 19 and Bridgeland violated the Leasing Act and, therefore, were invalid under the APA. As

17 As a facial discrimination claim, “the fundamental alteration test has no application” to Plaintiffs’ AMI claim. Lovell, 303 F.3d at 1054. 18 The VA’s argument that it does not have the expertise to build housing conflicts with record evidence showing it has successfully built on the Campus before. 19 Safety Park is not a party to these appeals. POWERS V. MCDONOUGH 61

relief, the district court voided these leases and further enjoined the VA from entering into new leases with the entities in question, finding that the VA persistently made unlawful leasing decisions and that allowing renegotiation of the leases would be “futile.” Subsequently, in a series of hearings, the district court backtracked its injunction on lease renegotiation as to Brentwood. Notably, the VA does not appeal the district court’s conclusion that these leases violate the APA. Rather, the VA challenges the scope of the district court’s injunctive relief, arguing that the court abused its discretion by enjoining the VA from entering new leases with the entities in question and then stepping into the VA’s shoes to decide with whom to renegotiate and under what terms. A district court, “as a court of equity conducting judicial review under the APA, has broad powers to order mandatory affirmative relief . . . if such relief is necessary to accomplish complete justice.” Nw. Env’t Def. Ctr. v. Bonneville Power Admin., 477 F.3d 668, 680–81 (9th Cir. 2007) (cleaned up). “[D]istrict court[s] ha[ve] broad latitude in fashioning equitable relief when necessary to remedy an established wrong.” Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 524 F.3d 917, 936 (9th Cir. 2008) (internal quotations mark omitted). In determining the scope of injunctive relief, “[t]he district court must weigh the competing claims of injury . . . and the effect on each party of granting or withholding of the requested relief.” Nat’l Wildlife Fed’n v. Espy, 45 F.3d 1337, 1343 (9th Cir. 1995) (internal quotation marks and citation omitted). Here, the district court abused its discretion in the scope of its injunction relating to the APA judgment. The district court found that the leases in question violated the APA and, as a remedy, the district court not only voided the unlawful 62 POWERS V. MCDONOUGH

leases but also prohibited the VA from renegotiating them and, later, ordered the VA to enter into a settlement agreement with Brentwood. These actions went beyond remedying any injury to Plaintiffs. By ordering the VA with whom and under what terms it should negotiate land-use contracts on the Campus, the district court impermissibly intruded into the VA’s expressed powers to manage the Campus in accordance with the Leasing Act. See Galvez v. Jaddou, 52 F.4th 821, 834 (9th Cir. 2022) (noting that the “district court must act within the bounds of . . . statute and without intruding upon the administrative province [of agency action.]” (internal quotation marks and citation omitted)). The district court’s reasoning for imposing such a broad injunction is certainly understandable because the VA maintained the position, throughout the trial, that there was no available space for the construction of housing on the Campus. See Gill v. Whitford, 585 U.S. 48, 72–73 (2018) (an injunction “must be tailored to redress the plaintiff’s particular injury”). Also, the VA failed to construct housing according to the 2016 Plan for almost a decade. Thus, the court believed that ordering Brentwood and the VA to settle with one-year contract and with a plan to return the leased land to the VA was necessary. But Plaintiffs’ harms are remedied by voiding the leases and allowing the VA to renegotiate them, if they can be brought into compliance with the Leasing Act. This creates the right balance between remedying Plaintiff’s injuries and not limiting the VA’s options. We find that the district court abused its discretion in prohibiting the VA to renegotiate the land-use agreements in question and in ordering the VA to settle with Brentwood. Instead, the right balance for the competing claims of the POWERS V. MCDONOUGH 63

parties and the effects of the requested relief is that the VA is free to renegotiate the leases if they can be brought into compliance with the Leasing Act. Thus, the land-use agreements are void unless and until renegotiated to comply with the Leasing Act. b. Bridgeland’s Injunction Bridgeland challenges the district court’s power to enjoin it. Bridgeland alleges that the district court lacked jurisdiction in issuing the modified injunction because no party sued Bridgeland and because the injunction does not remedy any claims asserted by any party. Not so. As the Supreme Court has stated, “district courts whose equity powers have been properly invoked . . . have discretion in fashioning injunctive relief . . . . [W]hen district courts are properly acting as courts of equity, they have discretion unless a statute provides otherwise.” United States v. Oakland Cannabis Buyers’ Co-op., 532 U.S. 483, 495–96 (2001). Here, the Leasing Act does not have textual restraints or restrict injunctive relief. Also, the fact that no party sued Bridgeland does not strip the district court of equitable jurisdiction because Bridgeland was in privity with the VA. See Regal Knitwear Co. v. NLRB, 324 U.S. 9, 14 (1945) (noting that an “injunction not only binds the party defendant but also those identified with them in interest, in ‘privity’ with them, represented by them or subject to their control”). The question is whether the district court abused its discretion in enjoining Bridgeland by prohibiting it to slant drill oil. We find that it did. Here, similarly to Brentwood, the harm caused to Plaintiffs will be remedied by voiding the lease unless and until the VA can demonstrate that it is compliant with the Leasing Act. See Gill v. Whitford, 585 U.S. 48, 73 (2018) 64 POWERS V. MCDONOUGH

(“A plaintiff’s remedy must be tailored to redress the plaintiff’s particular injury.”). But the district court abused its discretion when it went beyond the required remedy by improperly enjoining Bridgeland from slant drilling which exceeded the bounds of its injunctive power. Thus, the injunction prohibiting Bridgeland “to slant drilling private oil leases from the [Campus]” is vacated. IV. Conclusion For the reasons explained supra, we affirm in part, reverse in part, vacate in part, and remand to the district court to enter judgment in accordance with this opinion. 20 Thus, we affirm the district court’s grant of class certification; the APA judgment in Plaintiffs’ favor; and the judgment in Plaintiffs’ favor on their meaningful access, Olmstead, and AMI claims, and the equitable relief granted for these claims. We reverse the district court’s judgment in Plaintiffs’ favor on their charitable trust claim. We dismiss UCLA’s consolidated appeals as moot and vacate any injunctive relief with respect to UCLA’s lease and services. We vacate the judgment against HUD for the meaningful access, Olmstead, and AMI claims; and vacate the equitable relief granted for the APA claims. The parties shall bear their own costs on appeal.

20 Appellees’ motion for judicial notice, Dkt. No. 104, is granted. Appellants’ motion for judicial notice, Dkt. No. 116, is granted. Appellees’ motion to lift the stay of proceedings, Dkt. No. 119, is denied as moot.