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7/27/2019 Valentini - Opposition to MSJ
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Case No. 11-cv-04846 Memorandum in Opposition to Plaintiffs Motion for Summary Judgment
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UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA
GREGORY VALENTINI, et al.,
Plaintiffs,
vs.
ERIC SHINSEKI, et al.,
Defendants.
))))))))))
Case No.: 11-CV-04846 SJO MRW)DEFENDANTS MEMORANDUMOF POINTS AND AUTHORITIES INOPPOSITION TO PLAINTIFFSMOTION FOR SUMMARYJUDGMENT
[NO HEARING DATE SET][Before the Honorable S. James Otero]
STUART F. DELERYActing Assistant Attorney General
ANDRE BIROTTE JR.
United States AttorneyLEON W. WEIDMANChief, Civil DivisionALARICE M. MEDRANO(SBN 166730)Assistant United States AttorneyRoom 7516 Federal Building300 North Los Angeles StreetLos Angeles, CA 90012Telephone: (213) 894-0460Facsimile: (213) 894-7819
E-mail: [email protected]
JUDRY L. SUBARAssistant Branch DirectorELISABETH LAYTONSenior Counsel
KAREN S. BLOOMTrial AttorneyU.S. Department of JusticeCivil DivisionFederal Programs Branch20 Massachusetts Ave., N.W.Washington, DC 20001T: (202) 514-3183;F: (202) 616-8470Email: [email protected]
Attorneys for Defendants
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TABLE OF CONTENTS
INTRODUCTION ..................................................................................................... 1
ARGUMENT ............................................................................................................. 2
I. The APA Claim, As Articulated in Plaintiffs Motion for SummaryJudgment, Is Jurisdictionally Problematic ............................................ 2
II. VA Did Not Exceed Its Statutory Authority in Entering theChallenged ESAs . 5
A. VAs Interpretations Of Health-Care Resources,Health-Care Support, And Administrative Support Are
Reasonable................................................................................
8
B. When Appropriate Deference Or Respect Is Applied To VAsStatutory Interpretation, It Must Be Upheld ............................. 13
CONCLUSION ........................................................................................................ 18
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TABLE OF AUTHORITIES
CASES PAGES
Alaska Dep't of Envl. Conservation v. EPA,540 U.S. 461 (2004) ................................................................................. 14, 15, 16
AT & T Corp. v. Iowa Utils. Bd.,
525 U.S. 366 (1999) ................................................................................................7
Bailey v. United States,
516 U.S. 137 (1995) ................................................................................................6
Barnhart v. Walton,
535 U.S. 212 (2002) ....................................................................................... 13, 14
Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc.,
419 U.S. 281 (1974) .............................................................................................. 16
Bragdon v. Abbott,
524 U.S. 624 (1998) .............................................................................................. 15
Chevron U.S.A., Inc. v. Nat'l Res. Def. Council,
467 U.S. 837 (1984) ......................................................................................passim
City of Arlington, Texas v. FCC,
133 S.Ct. 1863, 2013 WL 2149789 (May 20, 2013) ...............................................7
Clackamas Gastroenterology Assocs., P.C. v. Wells,
538 U.S. 440 (2003) .............................................................................................. 16
Conn.t Nat'l Bank v. Germain,
503 U.S. 249 (1992) .............................................................................................. 13
Dep't of Treasury v. Fed. Labor Relations Auth.,
494 U.S. 922 (1990) .............................................................................................. 13
Fed. Express Corp. v. Holowecki,
552 U.S. 389 (2008) ....................................................................................... 15, 17
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Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992) ................................................................................................2
Meyer v. Holley,
537 U.S. 280 (2003) ......................................................................................... 7, 14
Natl Cable & Telecomms. Ass'n v. Brand X Internet Servs.,
545 U.S. 967 (2005) .............................................................................................. 13
Pauley v. BethEnergy Mines, Inc.,
501 U.S. 680 (1991) ......................................................................................... 6, 13
Pronsolino v. Nastri,
291 F.3d 1123 (9th Cir. 2002) ...............................................................................14
Schuetz v. Banc One Mortg. Corp.,
292 F.3d 1004 (9th Cir. 2002) ...............................................................................14
Shwarz v. United States,
234 F.3d 428 (9th Cir. 2000) ...................................................................................2
Skidmore v. Swift & Co.,
323 U.S. 134 (1944) ......................................................................................passim
Smiley v. Citibank (S.D.), N.A.,
517 U.S. 735 (1996) ................................................................................................7
Strickland v. Morton,
519 F.2d 467 (9th Cir. 1975) ...................................................................................5
United States v. Haggar Apparel Co.,
526 U.S. 380 (1999) .............................................................................................. 13
United States v. Mead Corp.,533 U.S. 218 (2001) .............................................................................................. 14
United States v. W.R. Grace & Co.,
429 F.3d 1224 (9th Cir. 2005) ...............................................................................14
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Wilderness Socy v. U.S. Fish & Wildlife Serv.,
353 F.3d 1051 (9th Cir. 2003) ...............................................................................15
STATUTES
5 U.S.C. 706(2) .......................................................................................................138 U.S.C 501(a) ......................................................................................................6
38 U.S.C. 7301(b) ...................................................................................................8
38 U.S.C. 7304 ........................................................................................................ 6
38 U.S.C. 8151 ..............................................................................................passim
38 U.S.C. 8152 ..............................................................................................passim
38 U.S.C. 8153 ..............................................................................................passim
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Congress has given the United States Department of Veterans Affairs
(VA) the authority to share health-care resources. Although the relevant statute
provides examples of such resources, it does not define that term. VA has applied
that term broadly, but reasonably. Plaintiffs challenge VAs reading of the statute
under the Administrative Procedure Act (APA), 5 U.S.C. 706(2). They cannot
do so successfully. First, Plaintiffs have not demonstrated that they have suffered
the sort of injury they would need to face in order to establish their standing to
pursue their APA claim. Second, although Plaintiffs state that they are arguing that
VA exceeded its statutory authority by interpreting health-care resources too
broadly, and are not challenging VAs discretion to decide whether particular
agreements to share health-care resources are in the best interest of the VA medical
program, they in fact ask the Court to set aside only some of the agreements VA
has entered pursuant to the agencys consistent interpretation of health-care
resources. Plaintiffs decision not to object to those agreements that they might
like or do not take issue with, while selectively challenging others that stand in an
identical legal posture for relevant purposes, suggests that they are not asking the
Court to exercise its jurisdiction to decide that the agreements were based on a
misreading of the law but instead asking the Court to set aside VA policy decisions
that Plaintiffs disagree with, or apparently would have made differently had they
been their decisions to make. The Court does not have jurisdiction to review such
requests. Third, Plaintiffs cannot prevail on the merits. Under settled principles
applying to APA review, the construction of a statute adopted by an administrative
agency with the responsibility to implement that statute is entitled to a considerable
amount of deference. Particularly when the appropriate level of deference is givento VAs construction of the statute, the Court must conclude that Plaintiffs
challenge to that construction is baseless. Because their summary judgment
motion can amount to nothing that meaningfully goes beyond this focused question
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of statutory construction, the Court should deny Plaintiffs motion, and grant
summary judgment to VA on Plaintiffs APA claim in this case.
ARGUMENT
I. THE APA CLAIM, AS ARTICULATED IN PLAINTIFFSSUMMARY JUDGMENT MOTION, IS JURISDICTIONALLY
PROBLEMATIC
At the summary judgment stage, the standards for establishing standing are
more rigorous than at the motion to dismiss stage of a case. See Lujan v.
Defenders of Wildlife, 504 U.S. 555, 561 (1992). At summary judgment, Plaintiffs
bear the burden ofshowing1
that (1) they have suffered an injury in fact that is
concrete and particularized, and actual or imminent (2) the injury is fairly traceable
to the challenged conduct and (3) the injury is likely to be redressed by a favorable
court decision. See id., 504 U.S. at 561.
Plaintiffs here articulate their claim narrowly, limiting it to a challenge to
how VA has construed 38 U.S.C. 8151-8153. See Pls. Mot. Summ. J.
(PMSJ) 10, May 10, 2013, ECF No. 124. So articulated, the only injury2
Plaintiffs can possibly rely on to establish standing consists of lost [ ] assurance
1At the motion to dismiss stage, Plaintiffs merely had to allege, not point to
evidence that shows, these elements of standing. See Order Granting in Part &
Den. in Part Defs. Mot. to Dismiss (Order MTD) 7, Mar. 16, 2012, ECF No. 70
(citing Shwarz v. United States, 234 F.3d 428, 435 (9th Cir. 2000)).
2In Plaintiffs Opposition to VAs motion to dismiss, adopted by Plaintiffs as part
of their summary judgment pleadings,see Pls. Oppn Defs. Mot. Summ. J.
(PODMSJ), n.1, May 10, 2013, ECF No. 125, they also claimed to have alleged
a procedural injury. However, because that injury related to Plaintiffs
allegation that the challenged enhanced sharing agreements (ESAs) should have
been executed as Enhanced-Use Leases (EULs), which is a formulation of the
APA claim that Plaintiffs appear to have abandoned in their summary judgment
briefing, Plaintiffs standing cannot rely on it. See PMSJ 8 (describing Plaintiffs
APA claim).
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that land deals unrelated to the sharing of health-care resources on the WLA
Campus would result in appropriate space for activities for veterans[,] and lost
access to space and opportunities that benefit veterans on the WLA campus.
Order Granting in Part & Den. in Part Defs. Mot. to Dismiss (Order MTD) 10-
11, Mar. 16, 2012, ECF No. 70. Plaintiffs, however, do not point to any evidence
that shows that they have been so injured.3
They fail to even mention this alleged
injury when discussing many of the individual agreements.4
More
fundamentally, Plaintiffs fail to even argue in their summary judgment briefing
that because of the sharing agreements there is insufficient space or opportunity at
the WLA campus to benefit Veterans, and they fail to explain why they believe
that all space on the campus must be used to directly provide services and
opportunities to Veterans, especially in light of a statutory provision authorizing
3The declarations Plaintiffs rely on do not support their standing claim. See
PODMSJ n.1. These declarations merely describe the personal histories of
individual Plaintiffs, and their alleged need for permanent supportive housing. The
Court has recognized, however, that Plaintiffs requests for permanent supportive
housing are distinct from the APA claim. See Order Granting in Part & Den. in
Part Defs. Mot. for Recons. (Order Mot. for Recons.) 7, June 19, 2012 , ECF
No. 87. The referenced declarations say nothing about the challenged agreements.
4In addition, to the extent Plaintiffs are claiming they have been prevented entirely
from using the resources subject to ESAs, it is notable that the ESAs generally
provide for at least some ongoing use of the land or resource at issue by Veterans.
Seee.g., AR 256, 266 (providing for VA to use Brentwood School athletic fields
that are the subject of that ESA at mutually convenient times); AR 419 (providing
for VA to use Jackie Robinson stadium at its discretion for mutually agreed upon
functions); AR 868 (ESA providing for Veterans Park Conservancy to develop on
the Shared Property such Capitol Improvements as, by agreement of the parties,
will enhance, protect, preserve and improve the . . . National Veterans Park, and
further its use as an historically-significant open space on the West Los Angeles
VA campus, for benefit of veterans and the general public); AR 903 (providing
that a field subject to filming agreement may be used by VA Veterans group, VA
employees, VA facilities management, film studios, or Veteran Service
Organization).
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sharing agreements with non-VA entities, to effectively utilize certain other
health-care resources. 38 U.S.C. 8153(a)(1).5
Even if Plaintiffs had standing, many of their arguments should be rejected
by the Court because they do not relate to the APA claim as framed by Plaintiffs in
their motion i.e., as a challenge to the agencys construction of a statute.
Plaintiffs limiting their claim to a challenge about statutory construction is
appropriate from a jurisdictional standpoint: Anything beyond that limited
challenge would implicate decisions that are committed to VAs discretion, which
the Court does not have jurisdiction to review. See Defs. Mot. for Summ. J.
(DMSJ) 3-6, April 10, 2013, ECF No. 116 (describing exception from APA
review for acts committed to an agencys discretion). To the extent that Plaintiffs
address the process by which VA made its discretionary decisions to enter into any
of the challenged agreements, or question the merits of such decisions, their
criticisms have nothing to do with statutory construction,6
and everything to do
5Plaintiffs also lack standing for temporal reasons. The Court has indicated that
Plaintiffs do not have standing to challenge individual land use agreements that
were no longer in effect when the First Amended Complaint (FAC) was filed,
See Order Granting in Part & Den. in Part Pls. Mot. to Supplement the AR(Order Mot. To Supp.) 5, Jan. 22, 2013, ECF. No. 108, and most of the
challenged agreements had expired by the time the FAC was filed. SeeNotice,
Feb. 19, 2013, ECF No. 112; AR 186-87. Because there was never a Barrington
Park ESA,see AR 1628-38, Plaintiffs do not have standing to challenge that
agreement as exceeding VAs ESA authority. Finally, in the Order MTD, the
Court described Plaintiffs alleged injury-in-fact as follows: [W]hen the VA
GLA entered into ESAs after 2008, Plaintiffs lost the assurance that land deals . . .
would result in appropriate space for activities for veterans. Order MTD 10
(emphasis added). Because the only agreements Plaintiffs challenge that were
executed after 2008 expired before the FAC was filed, this alleged injury cannot
support Plaintiffs standing. See AR 1317-1626.
6Another aspect of Plaintiffs briefing that is irrelevant to the one element of this
case as to which the Court has jurisdiction is that Plaintiffs take issue with the
supposed absence from the record of documentation that does not fit within the
scope of the AR as construed by the Court. This alleged absence is totally
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with Plaintiffs disagreement with certain of the VAs policy choices. These
policy choices, such as Plaintiffs expressed preference for the four agreements in
the AR that Plaintiffs have decided not to challenge, even though they are similar
in construct to the ones they do challenge in the relevant respects,7 are committed
to the agencys discretion and are beyond the scope of this Courts jurisdiction.
See DMSJ 3-11;see, e.g., Strickland v. Morton, 519 F.2d 467 (9th Cir. 1975).
II. VADIDNOTEXCEEDITSSTATUTORYAUTHORITYINENTERINGTHECHALLENGEDESAS
Even if the Court has jurisdiction to review Plaintiffs APA claim, Plaintiffs
motion for summary judgment should be denied. Plaintiffs motion is premised on
the notion that 38 U.S.C. 8153 is clear, and that it unambiguously supports
Plaintiffs position and thus undoubtedly should be interpreted in a manner that
supports their claim. It is hardly even clear, however, what Plaintiffs say the
irrelevant to the statutory construction claim. And, in any event, the Court has
made clear that the AR consists of all documentation before the VA at the time that
it decided to enter into each one of the challenged ESAs. Order Mot. To Supp. 11.
Therefore, Plaintiffs complaints about an alleged lack of documentation post-
dating the challenged decisions,see PMSJ 18-19, are meaningless.
7Plaintiffs claim that VA exceeded its authority in entering the other agreements in
the AR because those agreements do not involve the provision of health-care.
However, the four land use agreements that Plaintiffs have decided, without
explanation, not to challenge are not used for the provision of health-care any
more than are the agreements that Plaintiffs do challenge as exceeding VAs
statutory authority pursuant to 38 U.S.C. 8153. The ESAs Plaintiffs have
decided not to challenge concern provision of housing and related services, and
administration and management of a golf course and garden on the WLA campus.
See AR 448-521 (agreement to share space in VHA building for provision of
transitional housing and related social services); AR 524-611 (same); AR 668823
(agreement for sharing the business and financial administration of a golf course);
AR 294-331 (agreement for sharing the business and financial administration of a
garden). Although these agreements benefit Veterans, Plaintiffs have not
explained why they believe these four agreements concern the provision of
health-care while the agreements they challenge do not.
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statute means. Not only is Plaintiffs contention about VAs authority to enter into
agreements to share health-care resources internally inconsistent8
and
contradictory; in fact, Plaintiffs unsupported and inconsistent interpretations of the
key statutory provisions9 illustrate the important gaps and ambiguities that
Congress left for VA, the agency entrusted with administering the statute, to fill.
Because of these ambiguities or gaps, and because Congress delegated to VA the
general authority to promulgate regulations to implement this and other statutory
provisions VA administers,10
the extent of judicial review of the agencys policy
determinations is limited. Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 696
8 Plaintiffs appear to offer multiple, conflicting definitions of what constitutes anauthorized health-care resource sharing agreement. They fail to consistently say
whether they believe health-care resource to be defined by the nature of the
resource, the use to which a resource couldbe put, the use to which a resource
wouldbe put under a particular agreement, or something else entirely.
9Plaintiffs argument that VA has misinterpreted what Plaintiffs claim is the
unambiguous meaning of the enhanced sharing authority seems to ignore several
separate terms contained within the statutory description of health-care resource,
a term that is described in 38 U.S.C. 8152(1) as including hospital care and
medical services (as those terms are defined in section 1701 of this title), servicesunder Sections 1782 and 1783 of this title (i.e., Title 38), any other health-care
service, and any health-care support or administrative resource. 38 U.S.C.
8152(1). See PMSJ 12. Plaintiffs reading of the statute would violate a well-
recognized principle of statutory interpretation, by rendering the terms health-care
support and administrative resource superfluous. See, e.g., Bailey v. United
States, 516 U.S. 137, 146 (1995) (we assume that Congress used two terms
because it intended each term to have a particular, nonsuperfluous meaning). In
addition, as discussed infra at n.14, Plaintiffs reading of Section 8153 ignores the
phrase to effectively utilize certain other health-care resources, which violatesthis same principle of statutory interpretation.
10See 38 U.S.C 501(a)(giving VA general regulatory authority); 38 U.S.C.
7304(a), (b) (giving VAs Veteran Health Administration (VHA) regulatory
authority necessary to the administration of the Veterans Health Administration
subject to the Secretarys approval).
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(1991). See also, e.g., Meyer v. Holley, 537 U.S. 280, 287-88 (2003) ([W]e
ordinarily defer to an administering agencys reasonable interpretation of a
statute) (deferring to a HUD regulation) (citing both Chevron U.S.A., Inc. v. Natl
Res. Def. Council, 467 U.S. 837, 842-45 (1984) and Skidmore v. Swift Co., 323
U.S. 134, 140 (1944)). As the Supreme Court has recently explained:
Chevron is rooted in a background presumption of congressional
intent: namely, that Congress, when it left ambiguity in a statute,
administered by an agency, understood that the ambiguity would be
resolved, first and foremost, by the agency and desired the agency
(rather than the courts) to possess whatever degree of discretion the
ambiguity allows. Smiley v. Citibank (South Dakota), N.A., 517
U.S. 735, 740-41 (1996). Chevron thus provides a stable rule
against which Congress can legislate: Statutory ambiguities will be
resolved, within the bounds of reasonable interpretation, not by the
courts but by the administering agency. See [AT & T Corp. v. Iowa
Utilities Bd., 525 U.S. 366, 377-78 (1999)]. Congress knows to
speak in plain terms when it wishes to circumscribe, and in
capacious terms when it wishes to enlarge, agency discretion.
City of Arlington, Tex. v. FCC, 133 S.Ct. 1863 (2013).
Because VA has applied the relevant statutory language in a way that is not
foreclosed by the statute, its interpretation should not be set aside. Instead, VAs
reasonable interpretation should be upheld.
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A. VAs Interpretations Of Health-Care Resources, Health-CareSupport, And Administrative Support Are Reasonable.
The provision at issue here says:
(1)The term health-care resource includes hospital careand medical services (as those terms are defined in section1701 of this title), services under sections 1782 and 1783of this title, any other health-care service, and any health-care support or administrative resource.
38 U.S.C. 8152(1). VA has construed health-care resources to include the
sharing of medical space. The agency has read that term, in turn, to mean space
controlled by the Veterans Health Administration (VHA), the organization
within VA that is responsible for providing medical care and services to the
nations Veterans.11 Thus, VAs internal guidance documents reflect VAs
interpretation that medical space, referenced in 38 U.S.C. 8153(a)(3)(A),
includes any real property under VHAs control. The agency describes 38 U.S.C.
8151-8153 as providing that VA may enter into an agreement with an entity
for the use of underutilized VHA space. AR 149 (emphasis added).12
VA understands health-care resources to include hospital and ambulatory
care, mental health services, medical and surgical services, examinations,
treatment, rehabilitative services, dental services and appliances, preventive health-
care, prosthetics, and other health-care services and supplies. AR 16 (VHA
Directive 97-015 (March 12, 1997)). In addition, VA has noted that the term
11See 38 U.S.C. 7301(b) (describing primary function of Veterans Health
Administration).
12VHA Directive 1660.1, Handbook 1660.1 and Handbook 1820.1 (AR 26, 46, 61)
offer that [e]nhanced sharing agreements for the use of VA space (including
parking, outdoor recreational facilities and vacant land) are authorized under 38
U.S.C. Section 8153. Because these are VHA handbooks and the statute
specifically limits the entities that can enter ESAs to department health-care
facilities,see 38 U.S.C. 8153(a)(1), it is clear that these references to vacant
space and recreational facilities can refer only to VHA-controlled space at
department health-care facilities.
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health-care resources also includes any health-care support and administrative
resources, including medical equipment or space. Id. The agency distinguishes
between health-care support and administrative resource in explaining that
whereas [h]ealth care support resources serve medically related purposes . . .
[a]dministrative resources include services not unique to the provision of medical
care, but deemed necessary to support such care. AR 24;see also AR 43.
VA has thus interpreted health-care resources to include the sharing of
medical space which may be any real property (i.e., land, improvements, and/or
space) under VHAs control, because such property may either be used directly to
serve medically-related purposes or may be deemed necessary for the provision of
medical care.13 This definition is reasonable in light of the statutes purpose to
make use of underutilized VA resources. See 38 U.S.C. 8153(a)(1); AR 149.
Legislative history supports this interpretation. Prior to the 1996
Amendment of VAs Enhanced Sharing Authority, the law permitted only the
sharing of specialized medical resources. In 1993, Congress expanded the scope
of resources that VA could share with state Veterans homes, permitting the sharing
of health-care resources. Health-Care for Persian Gulf Veterans, Pub. L. No.
103-210, 3, 107 Stat. 2496 (1993). The term health-care resources was
described in the new legislation as referring to hospital care, medical services, and
rehabilitative services as those terms are defined in . . . section 1701 [of Title 38]
any other health-care service[s], and any health-care support or administrative
resource.Id. The breadth of this authority is demonstrated by the fact that
13Keeping some vacant or undeveloped land in that state is also deemed by VHA
to be necessary to serving its mission of providing high quality health-care to
Veterans on the WLA campus. For example, VAs Master Plan for the WLA
campus notes that open space is an important characteristic of the WLA campus,
AR 162 and that one of VHAs objectives in managing the WLA campus is
[p]artner[ing] with the community to make the campus environment aesthetically
pleasing, showing respect for the service of veterans. AR 174.
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Congress listed such resources as grounds maintenance, laundry, housekeeping,
and pharmacy as examples of health-care resources to be shared. H.R. Rep. No.
92, 103rd Cong., 1st Sess. 1993. Thus, Congress specifically intended this 1993
amendment to cover all of those resources that supported the operation of a
medical facility, even if they were not directly related to provision of medical care
to a Veteran (or other eligible) patient.
The subsequent expansion of VAs general Sharing Authority in 1996, under
the provisions codified at 38 U.S.C. 8151-8153, used virtually identical
language as the 1993 amendment in describing the resources that VA was
authorized to share. Furthermore, Congress indicated in 38 U.S.C. 8151-8153
that it intended to give VA at least the same broad authority to share resources with
other entities as it could already share with state Veteran homes. See Joint
Explanatory Statement, 142 Cong. Rec. S11648 (1996)
Plaintiffs have offered no alternative interpretation for health-care
resource or administrative support that would suggest that the statute forecloses
VAs interpretation. Indeed, based upon the plain meaning of these words, VAs
interpretation is permissible and reasonable. As to administrative resource, one
meaning of administrative is pertaining to management of affairs, while one
meaning of resource is a stock or reserve which can be drawn on when
necessary. New Shorter Oxford English Dictionary (4th Ed. 1993) 28, 2565.
Thus it is not only permissible but reasonable in the statutory context, for VA to
interpret administrative resource to include the land, improvements, and space
that VHA controls, manages, and may use when necessary.
Turning to health-care support, one definition of support is thing whichsupports or [a] supporter, a prop, a stay. Id. 3153. Thus VA has permissibly
and reasonably construed health-care support to mean a thing which supports the
provision of health care. In light of the dictionary definitions of these terms, as
well as the overall purpose of VAs enhanced sharing authority, VA reasonably
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interpreted administrative resource and health-care support to include all real
property under VHAs control, which could potentially be used directly or
indirectly to support VAs provision of health-care services to Veterans.14
In contrast, Plaintiffs have failed to offer any reasonable alternative
interpretation of health-care resource. Notwithstanding repeated assertions that
the meaning of health-care resource is clear from the statute itself, Plaintiffs have
failed to articulate a consistent, coherent definition of the health-care resources
that VA is authorized to enter agreements to share pursuant to 38 U.S.C.
8151-8153. It cannot be, as Plaintiffs appear to argue, that whether a building or
piece of land constitutes a health-care resource depends upon how the parties to
a sharing agreement intend to use it. See PMSJ 12 (a heath care support resource
could be a laundry facility that is used to wash bedding used in a hospital, while a
health-care administrative resource could be a digital filing system for medical
records.). The statute itself includes no requirement that the resources subject to
ESAs be used to provide health-care services. See 38 U.S.C. 8151-8153. And
it cannot be that, as Plaintiffs appear to argue in other places, that whether a
building or piece of land constitutes a health-care resource hinges upon whether
the sharing agreement would result in the provision of health-care services to
14Despite VAs clear interpretation of health-care resources in 38 U.S.C.
8153(a)(1) as limiting land that can be the subject of ESAs to VHA-controlled
property, and the sharing statutes authorization of agreements for the mutual use,
or exchange of use, of health-care resources between Department health-care
facilities and any health-care provider, or other entity or individual, id. (emphasis
added), Plaintiffs mischaracterize VAs interpretation by asserting that VA
interprets the statute to allow the agency to lease its property to any entity for any
purpose. PMSJ 1. Plaintiffs also inaccurately characterize the challenged
agreements as purely commercial land deals and the sharing agreements in the
AR as leases. See, e.g., PMSJ 15. Leases, in fact, convey very different property
interests than the sharing agreements at issue here. And the non-profit entities that
entered into some of the sharing agreements at issue are hardly commercial
enterprises.
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Veterans. See PMSJ 19 (stating that the ESA with West Side Breakers Soccer
Club contains no provisions that benefits veterans, much less involving the
provision of health-care to veterans). For example, if Plaintiffs understanding of
health-care resource were to be applied to the sharing of medical equipment,
which falls within the description of health-care resource in Section 8151, no
agreement for VA to sell a health-care resource (i.e., effectively use certain
other health-care resources pursuant to Section 8153(a)(1)) to a non-Veteran-
focused entity would be lawful under the statute. Instead, VA would have
authority only to purchase the use of medical equipment from another entity to
use in providing health-care services to Veterans.15
Because Plaintiffs
interpretation would render a significant portion of Section 8153 meaningless, it
cannot work.16
More to the point, Plaintiffs have not shown, and cannot show, that
VAs interpretation is unreasonable.
15VA has construed 8153 to authorize VA to both sell and acquire use of health-
care resources. See 38 U.S.C. 8153 (authorizing VA eitherto secure health-
care resources which otherwise might not be feasibly available, orto effectively
utilize certain other health-care resources by means of an ESA) (emphasis added);
AR 16 (VHA Dir. 97-15) (policy directive noting that sharing statute providesopportunity for sales of services to generate revenue to be used to maintain and
expand services for Veterans).
16Plaintiffs proposed interpretation(s) should also be rejected because the canons
of construction and other interpretive tools Plaintiffs marshal do not actually
support their interpretation. Plaintiffs contend that their interpretation of 8152(1)s
description of health-care resource is consistent with the principle ofejusdem
generis, or a general term following more specific terms means that the things
embraced in the general term are of the same kind as those denoted by the specific
terms. PSJM 12. However, this principle is inapplicable here because the term(health-care support or administrative resource) to which Plaintiffs attempt to
apply it, is not a general term following more specific terms. Rather this phrase
consists of two general terms, following another general term, which follows a list
of specific terms. See 38 U.S.C. 8152(1) (the term health-care resource
includes hospital care and medical services . . . services under sections 1782 and
1783 of this title, any other health-care service, and any health-care support or
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B. When Appropriate Deference Or Respect Is Applied To VAs
Statutory Interpretation, It Must Be Upheld
VAs interpretation of the scope of its own authority to enter into
agreements for the sharing of health-care resources pursuant to 38 U.S.C.
8151-8153 must be upheld as long as it is not flatly contradicted by the plain
language of the statute,seeDept of the Treasury v. Fed. Labor Relations Auth.,
494 U.S. 922, 928 (1990), even if VAs interpretation is not the best or most
natural interpretation. See, e.g.,Pauley, 501 U.S. at 702;Nat'l Cable &
Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 980 (2005); United
States v. Haggar Apparel Co., 526 U.S. 380, 394 (1999) .
Plaintiffs are mistaken in asserting that VAs interpretation is entitled to no
deference merely because it has not been set forth in notice-and-comment
rulemaking or issued in the context of an adjudication. See PMSJ 13. An agency
authorized by Congress to promulgate rules with the force of law does not need to
engage in rulemaking in order for its interpretation of the statute it administers to
be accorded Chevron deference. See, e.g., Barnhart v. Walton, 535 U.S. 212, 221
(2002) (applying Chevron deference to EPA interpretation made through means
less formal than notice-and-comment rulemaking).
administrative resource). Ejusdem generis might support an interpretation of any
other health-care service but it is not controlling in terms of how health-care
support or administrative resource can be interpreted or defined.
Similarly unpersuasive is Plaintiffs argument that VAs interpretation of
health-care resource should be rejected, because it would render superfluous
VAs Enhanced-Use Leasing statute. As explained above, Plaintiffs rely on a
mischaracterization of VAs position in order to reach this conclusion. See supra
n. 14. Moreover, the Supreme Court has specifically rejected this logic. SeeConnecticut Natl Bank v. Germain, 503 U.S. 249, 253 (1992) (redundancies
across statutes are not unusual events . . . and so long as there is no positive
repugnancy [e.g. rendering one or the other wholly superfluous] between two laws
. . . a court must give effect to both). VAs enhanced-use leasing statute and
enhanced sharing authority are not co-extensive or interdependent. Thus,
Plaintiffs argument in that regard should be rejected.
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In addition, courts do not necessarily draw a bright-line distinction between
Chevron deference and the lesser deference or respect afforded to agency
decision letters, internal guidance documents, handbooks, and other less formal
articulations of agencies statutory interpretations, pursuant to Skidmore v. Swift,
323 U.S. 134 (1944). See, e.g., Meyer, 537 U.S. at 287-88(citing both Chevron
and Skidmore in support of statement that we ordinarily defer to an administering
agencys reasonable interpretation of a statute.). As the Ninth Circuit has noted,
[f]ollowing [United States v. Mead Corp., 533 U.S. 218, 226-27 (2001)], the
continuum of agency deferencehas been fraught with ambiguity. United States
v. W.R. Grace & Co., 429 F.3d 1224, 1235 (9th Cir. 2005) (emphasis added). In
some instances, courts have applied Chevron deference even though an agency
reached its interpretation through means less formal than notice and comment
rulemaking.17
In other instances, however, courts have upheld agency
interpretations even when applying the modified deference standard affording
respect to agencies informal interpretations. See, e.g., W.R. Grace & Co., 429 F.
3d at 1236 (upholding EPAs informal interpretation of its own action cleaning up
asbestos mine as removal within meaning of CERCLA); accord Alaska Dept of
Env. Conservation v. EPA, 540 U.S. 461, 487-88 (2004) (upholding EPAs
interpretation of statute in internal agency memorandum when affording the
interpretation Skidmore respect rather than Chevron deference). Still other
courts have simply declined to decide whetherChevron orSkidmore deference
applies, where they find that an agency interpretation may be upheld under the less
deferential Skidmore standard. See, e.g., Pronsolino v. Nastri, 291 F.3d 1123,
1133, 1134-35 (9th Cir. 2002) (declining to decide whetherChevron orSkidmoreapplies, because interpretation contained in EPA policy, regulations and practice
is upheld even underSkidmore standard). Whatever standard of deference or
17See, e.g., Schuetz v. Banc One Mortg. Corp., 292 F.3d 1004, 1012-14 (9th Cir.
2002) (giving Chevron deference to HUD policy statement));Barnhart, 535 U.S.
at 221.
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respect applies here, VAs interpretations of statutory provisions that Congress has
authorized VA to administer must be upheld because the agency interpretations are
reasonable, and are not foreclosed by the language of the statute.
Plaintiffs maintain that VAs statutory interpretations, expressed in the ESAs
themselves and in internal VA policy documents, handbooks, and guidance
materials are not due any weight underMeadand Skidmore, because they contain
no reasoned analysis. PMSJ 21. Plaintiffs rely for this proposition on Wilderness
Society v. U.S. Fish & Wildlife Service, 353 F.3d 1051 (9th Cir. 2003) (en banc), in
which the Ninth Circuit declined to give deference to a determination by the U.S.
Fish and Wildlife Service because it found that Congress had spoken clearly to
foreclose the agencys interpretation. Id. at 1062. Here, however, there can be no
similar conclusion that Congress has spoken clearly as to the meaning of health-
care resource since Congress provided no definition of the terms health-care
support or administrative resource, which are included within the statutory
description of health-care resource contained in 38 U.S.C. 8152(1).
Even if only Skidmore respect applies to VAs statutory interpretation
here, it should nevertheless be upheld. See Alaska Dept of Env. Conservation, 540
U.S. at 487-88 . Where, as here, an agencys policy statements, embodied in its
compliance manual and internal directives, interpret . . . the statute itself [,]. . .
assuming these interpretive statements are not entitled to Chevron deference, they
[] reflect a body of experience and informed judgment to which courts and
litigants may properly resort for guidance.Fed. Express Corp. v. Holowecki, 552
U.S. 389, 399 (2008) (quotingBragdon v. Abbott, 524 U.S. 624, 642 (1998)).
Here, VHAs experience and informed judgment consist not only of its expertise inproviding medical care to Veterans, but also its experience in managing the use of
all healthcare resources available on its medical campuses, in keeping with
multiple statutory requirements, numerous (and sometimes competing) objectives,
and the complexities associated with VAs healthcare and related services to
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Veterans (and sometimes, non-Veterans). See generally AR 155-89 (West Los
Angeles VA Medical Center Veterans Programs Enhancement Act of 1998 Master
Plan).
VAs interpretation of the statute it is entrusted by Congress to administer
should be upheld, even if it is expressed with less than ideal clarity, as long as
the agencys path may reasonably be discerned. Alaska Dept of Env.
Conservation, 540 U.S. at 497 (quotingBowman Transp., Inc. v. Ark. Best
Freight System, Inc., 419 U.S. 281, 286 (1974)). Here, where the agencys
interpretation is not articulated via promulgation of regulations or via formal
adjudication, VAs statutory interpretations expressed in its policy guidance
handbooks and directives need not be read in isolation, but instead may be
considered reflective of the agencys statutory interpretation and an explanation of
when VA may enter into specific proposed ESAs. See id. (EPAs skeletal orders .
. . surely are not composed with ideal clarity . . . however, are properly read
together with accompanying explanatory correspondence . . . the Agencys
comments and orders adequately ground [the Agencys] determination.). Here,
the parameters of VAs understanding and interpretation of health-care resources
are not only delineated in the agencys policy handbooks and directives, but also
exemplified in VAs decision-making regarding proposed ESAs. By deciding to
enter a proposed land-use agreement as an ESA, VA expresses its interpretation
that that agreement is for use of a health-care resource, and is permitted under
the ESA authority.
Although an agencys statutory interpretation is not controlling, if it is
expressed in agency policy manuals, the interpretation may nevertheless bepersuasive. See Clackamas Gastroenterology Assocs., PC v. Wells, 538 U.S.
440, 449 (2003) (EEOC compliance manual was persuasive to Court in
determining whether director-shareholder physicians should be counted as
employees under the Americans with Disabilities Act). Here, VAs
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interpretation of health-care resources is persuasive because it is permissible
given the language, structure, and legislative history of the statute and because it
enables VA, through VHA, to appropriately administer the resources available to
meet the health-care needs of Veterans -- in a practical manner that takes into
account and balances various (and sometimes competing) concerns and priorities.
In determining how persuasive a statutory interpretation expressed in agency
policy statements may be, one factor a court may consider is whether the agency
has applied its position with consistency. Fed Ex., 552 U.S. at 399 (upholding
agencys interpretation where it had been applied by EEOC staff for at least five
years, even where the agencys implementation of this policy has been uneven).
Here, VAs interpretation of health-care resource to be VHA-controlled property
has been applied by the agency consistently since 1997. See generally AR 16-88
(agency guidance); AR 191-1046 (application to decisions to enter specific ESAs).
Finally, just as Plaintiffs objections to VAs policy decisions to select one
sharing partner or another are not legally relevant to Plaintiffs statutory
interpretation claim under the APA, neither are Plaintiffs miscellaneous claims
that the Administrative Record does not sufficiently document the implementation
of some of the challenged ESAs. Although the Court has made clear that the
Administrative Record in this case consists of all documentation before VA at the
time that it decided to enter into each one of the challenged ESAs, Order Mot. to
Supp. 11, Plaintiffs inexplicably point out the unsurprising fact that the Record
does not contain documentation postdating the challenged decisions. See supra
n.8. This challenge, like Plaintiffs attacks on VAs decision-making discussed
above, fails because Plaintiffs fail to point to any record evidence that VA actedoutside of its statutory authority under 38 U.S.C. 8151-8153, as reasonably
interpreted by VA itself.
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CONCLUSION
Plaintiffs fail to show that VAs interpretation of 38 U.S.C. 8151-8153 is
unreasonable and do not point to any evidence that VA acted outside of its
statutory authority under 38 U.S.C. 8151-8153 as reasonably interpreted by VA.
Accordingly, Plaintiffs motion for summary judgment must be denied.
Respectfully submitted,
Dated: June 12, 2013 STUART F. DELERY
Acting Assistant Attorney General
ANDRE BIROTTE JR.
United States AttorneyLEON W. WEIDMAN
Chief, Civil Division
ALARICE M. MEDRANO
Assistant United States Attorney
JUDRY L. SUBAR
Assistant Branch Director
By: /s/ Elisabeth Layton
ELISABETH LAYTONSenior Counsel
KAREN S. BLOOM
Trial Attorney
U.S. Department of Justice
Civil Division
Federal Programs Branch
20 Massachusetts Ave., N.W.
Washington, DC 20001
T: (202) 514-3183;F: (202) 616-8470
Email: [email protected] for Defendants
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