Valentini - Opposition to MSJ

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

Case 2:11-cv-04846-SJO-MRW Document 127 Filed 06/12/13 Page 1 of 23 Page ID #:3851


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Case No. 11-cv-04846 Memorandum in Opposition to Plaintiffs Motion for Summary Judgment Page i

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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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Case No. 11-cv-04846 Memorandum in Opposition to Plaintiffs Motion for Summary Judgment Page ii

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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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Case No. 11-cv-04846 Memorandum in Opposition to Plaintiffs Motion for Summary Judgment Page iii

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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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Case No. 11-cv-04846 Memorandum in Opposition to Plaintiffs Motion for Summary Judgment Page iv

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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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Case No. 11-cv-04846 Memorandum in Opposition to Plaintiffs Motion for Summary Judgment Page 1

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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.

Case 2:11-cv-04846-SJO-MRW Document 127 Filed 06/12/13 Page 10 of 23 Page ID#:3860


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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


Valentini - Opposition to MSJ

Documents

Transcript of Valentini - Opposition to MSJ