RUSS REPORT - On August 29, 2013, U.S. District Judge S. James Otero ruled against the U.S. Department of Veterans Affairs (DVA) saying they misused land at the West Los Angeles Veteran’s Administration (WLAVA) through the improper use of Enhanced Use Leases (EUL) and Enhanced Sharing Agreements (ESA) but Otero did not order tenants to vacate the property.
"The general rule is that when an administrative agency has abused its discretion or exceeded its statutory authority, a court should remand the matter to the agency for further consideration.”
However, "when the language of a statute is clear and unambiguous it must be given effect," Otero wrote in his decision.
“The language of §§ 8151-8153 is clear and unambiguous. The DVA is authorized to share health-care resources. Space may be a health-care resource when it is used in a manner that is related to the provision of health-care. The Disputed Agreements do not share space that is related to the provision of health-care. Accordingly, with the exceptions of the Barrington Park and Richmark Entertainment agreements, the Court finds the Disputed Agreements to be unauthorized by law and therefore void.”
Otero stayed any enforcement of his Order for six months pending further appeal and declined to enter injunctions on future ESA’s at the Campus.
The lawsuit, originally filed in June 2011 by the American Civil Liberties Union (ACLU was the “first of its kind” lawsuit against Eric Shinseki (Secretary, Department of Veterans Affairs) and Donna M. Beitner (Director, VA Greater Los Angeles Healthcare System) on behalf of the Viet Nam Veterans of America, several homeless veterans and Carolina Winston Barrie, whose ancestors, Arcadia B. de Baker, and Senator John P. Jones donated 387 acres of land to what is now the WLAVA.
The lawsuit alleged that the WLAVA used land through ESA’s and EUL’s illegally and denied plaintiffs, as veterans, a “permanent home” to which they could go to begin their recovery, and that the VA, as the successor to the National Home, holds the donated land only in the capacity as a trustee, with a legally imposed fiduciary duty to permanently use the donated land expressly for that purpose.
The ACLU’s involvement with the WLAVA actually came prior to this lawsuit.
Robert Rosebrock, Director, Old Veteran’s Guard, was cited by federal authorities on six occasions for actions related to his hanging the US Flag upside down as a sign of distress (U.S. Flag Code, Sec. 176). Rosebrock and others had been peacefully protesting outside a public park leased by Veterans Park Conservancy (VPC). The ACLU intervened on Rosebrock’s behalf and all charges were dismissed.
The ACLU filed a lawsuit on Rosebrock’s behalf against Donna Beiter for viewpoint discrimination, and on May 26, 2011, Judge S. James Otero rendered his decision, ruling in Rosebrock’s favor, saying, “Plaintiff’s First Amendment right was violated as a matter of law when Defendants committed impermissible viewpoint discrimination.”
Rosebrock, and along with many Veteran Service Organizations (VSO), denounced the use of ESA’s and EUL’s and have fought the VA for many years over these land issues, most notably the 16-acre public park where homeless veterans are generally not allowed.
It was through Rosebrock’s efforts that the Metabolic Studio became involved.
Lauren Bon, Director, Metabolic Studio (a direct charitable activity of the Annenberg Foundation), and her team ran the widely acclaimed, fully funded and compensated work therapy (CWT) program for veterans, known as Strawberry Flag, for over a year on the WLAVA campus. The work was allowed under a Memorandum of Understanding (MOU) agreement with Asset management, the project was extended due to its popularity with both clinicians and veterans.
Despite the success and many benefits it offered to veterans, Beiter, a defendant in the lawsuit, abruptly pulled the plug on the Strawberry Flag project in October 2010, putting several disabled veterans out of work.
The Annenberg Foundation had given one million dollars to the VPC to build a Rose Garden at the WLAVA, but yanked its support after Bon’s Strawberry Flag was abruptly halted.
Bon, then concentrated her efforts on a position paper titled Preserving a Home for Veterans (January 2011) that was supported by historical background, USGS maps and extensive case law, asserting the VA’s breach of trust in failing to use the WLAVA as a “permanent home” for veterans (as required under the 1888 deed) and outlined several impermissible uses of the land. The release of this position paper was highly publicized and caused outrage among thousands of veterans and stakeholders.
In that same month the ACLU, joined by a host of VSO’s, the Annenberg Foundation, Carolina Winston Barrie and hundreds of stakeholders called for an investigation into the breach of trust and the violation of the fiduciary duty by the VA.
Letters to President Barack Obama, Congressman Henry Waxman, Senator Dianne Feinstein, Senator Barbara Boxer and Eric Shinseki never received responses and no investigation was ever initiated.
In February 2011, Carolina Winston Barrie resigned from her position on the Board of the VPC that leases the public park for $1.00 from the VA citing the WLAVA’s continuing intent to violate the restrictions placed on the use of the land.
Barrie said, “The Draft Master Plan confirms the policies of the WLAVA to impermissively divert the land for non-veteran related uses pursuant to land sharing and other agreements and its continued intention of “hospitalizing” the entire operation and excluding any of the aspects of a home for veterans such as providing meaningful recreational, social, spiritual, occupational and intellectual activities and facilities.”
Rosebrock had emphasized, “The Act of Congress of March 2, 1887 and the language of the 1888 Deed clearly indicated the intent for a National Home for veterans- not a public park where homeless veterans are likely to be ostracized.”
The “tenants” whose leases have been declared unauthorized by law and therefore void face an uncertain future. But plaintiffs in this lawsuit have no plans on backing off.
Those tenants noted in Otero’s ruling include:
(1) an agreement with the Brentwood School to use 20 acres of land for an athletic complex;
(2) an agreement with Sodexho Marriott Laundry Services to use a building "for processing hospitality linen";
(3) an agreement with UCLA to use Jackie Robinson Stadium for the UCLA baseball team;
(4) an agreement with Twentieth Century Fox Television for parking, storage and maintenance of production sets;
(5) an agreement with Veterans Park Conservancy to use sixteen acres of land as a park;
(6) an agreement with the Westside Breakers Soccer Club to use MacArthur Field and an adjacent lot for soccer practices and matches;
(7) an agreement with Westside Services, LLC for the control and operation of parking areas;
(8) an agreement with TCM, LLC for a farmer’s market;
(9) an agreement with Richmark Entertainment for "booking services and theatre management services" for theatrical productions in the
(10) eleven separate filming agreements with various film production companies which allowed these companies to film on the WLA Campus.
For more than a decade opponents of these ESA’a and EUL’s have fought the WLAVA and for just as long, thousands of veterans and members of the community have asked the WLAVA to use resources to help homeless veterans.
Just as the plaintiffs of this lawsuit, thousands of veterans suffer from severe PTSD and Traumatic brain injury that hampers their ability to acquire much needed medical care, benefits and services.
For now, a small victory can be claimed but it doesn’t change the fact that over 6000 veterans still sleep on the streets of Los Angeles. The VA has spent millions of dollars in legal fees fighting veteran’s lawsuits and appeals that could have been spent helping veterans heal from their wounds instead.
(Katharine Russ is an investigative reporter. She is a regular contributor to CityWatch and works with the United States Justice Foundation in defense of Veterans. Katharine Russ can be reached at: Katharine.firstname.lastname@example.org)
Vol 11 Issue 71
Pub: Sept 3, 2013