Appeals court upholds landmark ruling in homeless veterans lawsuit against the VA
A long-awaited ruling by the 9th Circuit reinforces an order for the VA to build thousands of housing units for vets — but with some unexpected caveats.
Members of the Powers v. McDonough lawsuit gather in front of the First Street U.S. Courthouse on December 14, 2023. Image by Rebecca Murga
The U.S. Court of Appeals for the 9th Circuit issued a historic ruling Tuesday, largely affirming a landmark federal court ruling that required the Department of Veterans Affairs to build housing for unhoused and disabled veterans in Los Angeles. While not a total win for the veterans in the class-action suit, the complex decision may prove to be consequential in eliminating veteran homelessness across the country.
The ruling, issued eight months after a three-judge panel heard arguments by the Department of Justice in its appeal of Powers v. McDonough, opens the door for disabled service members nationwide to bring legal action against the VA for access to housing. “This class action lawsuit, and its numerous appeals, demonstrates just how far the VA has strayed from its mission,” writes Judge Ana de Alba in her opinion. The VA did not provide comment for this story by deadline.
“No court in the history of the country has ever issued a decision like this,” said the veterans’ counsel Mark Rosenbaum in a press briefing Wednesday morning.
The Home of the Brave newsletter reports on how veterans are fighting homelessness through Powers v. McDonough, a class-action lawsuit filed against the Department of Veterans Affairs.
Though the appeal is over, their struggle for housing is not. Get updates delivered to your inbox here:
The panel agreed that the leases for Brentwood School, Bridgeland Oil, and Safety Park were invalid because they did not primarily benefit veterans, a requirement of the 2016 West Los Angeles Leasing Act. It also ruled that the VA’s contracting of third-party housing developers who rely on financing tied to income restrictions and counting veterans’ disability benefits as income “is facially discriminatory under the Rehabilitation Act.” The judges also upheld Carter’s order requiring the VA to build large amounts of housing on the West LA VA campus. Perhaps most importantly, the opinion agreed that the VA had denied unhoused veterans “meaningful access” to healthcare.
“The important thing is… while there isn’t necessarily a right to housing itself,” noted Rosenbaum, “there is even a more significant right, and that’s access to healthcare that disabled veterans cannot get by virtue of their status as being homeless.”
“It's the most consequential decision on behalf of veterans in the history of the country,” noted Rosenbaum because the appellate ruling covers the entire 9th district — stretching from Hawaii to Washington State down through California. “And it has application directly throughout the entire country,” he added.
“We’re ready to see some action by the VA so we can get more veterans off the street and stop this madness once and for all.” — Rob Reynolds, Iraq war veteran and veterans advocate
However, the 9th Circuit struck down some parts of the lower, district court’s ruling. Specifically, the panel cleared the Department of Housing and Urban Development (HUD) in this case, placing responsibility squarely on the VA, noting “HUD has no say in the way the VA administers its laws.”
The panel also rejected the idea that the federal government had entered into a charitable trust in 1888 when it accepted a gift of hundreds of acres donated for the specific purpose of building veteran housing. Through various instances of case law, including Supreme Court precedent, the judges determined the district court “erred in finding that the Leasing Act and its 2021 Amendment imposed judicially enforceable fiduciary duties on the VA.”
As a result of this particular ruling, the panel concluded that UCLA’s lease of 10 acres for a baseball stadium on the VA campus was still valid, as its legality was not in debate in the district court over whether the agreement primarily benefitted veterans.
Navy veteran Jeffrey Powers, the named plaintiff in the case, accepts the overall appellate ruling as a significant, if incomplete, victory. “I wanted 100 percent — I guess we got about 80 percent, so I think I should be happy,” he said in the briefing. “We got the most important thing, which was to get veterans off the street, and for that, I'm happy with the outcome.”
Get the whole story: An epic government scandal hiding in plain sight
Home of the Brave is an award-winning, multimedia feature documenting the unhoused veteran crisis at the West LA VA campus, a 388-acre property deeded to the U.S. government in 1888 specifically to house disabled soldiers. Over the last 50 years, the land was carved up and leased to private interests, while development for veteran housing has been painfully slow. A land grab dating back to the U.S. Civil War, the history of this land is a story bursting with government malfeasance, neglect, graft, and even death.
In response to the ruling, Mary Osako, UCLA’s vice chancellor for strategic communications issued the following statement: “UCLA is pleased with the Court of Appeals’ ruling that upholds our lease with the VA. We look forward to continuing the longstanding UCLA-VA partnership that keeps Jackie Robinson Stadium the homefield for Bruins baseball and provides critical services and benefits to our Veterans in the Los Angeles region.”
“UCLA is making public statements as we speak that the court vindicated its position,” said Rosenbaum. “That is a lie; that’s not true.” The veterans counsel claims UCLA is still in violation of the Leasing Act, which says that the university’s activities related to its property lease must primarily benefit service members and their families. Both a VA official and a representative from UCLA testified in the trial that the ballpark doesn’t principally benefit veterans.
But the 9th Circuit judges did not evaluate UCLA’s lease on those grounds, because the plaintiffs argued the stadium’s lease was invalid due to terms related to the deed and the charitable trust.
“That was a serious oversight by us — we intend to correct it,” Rosenbaum said, adding if UCLA doesn’t cooperate, the veterans will take the university to court.
“UCLA can run, but they’re not going to be able to hide from this decision,” Rosenbaum said. “It’s supposed to be the home of the brave, not the home of the Bruins.”
Watch: “The Promised Land”
Home of the Brave is a multi-part, multimedia feature that exposes a decades-long scandal of veteran homelessness hiding in plain sight at the West LA VA. It’s the story of how 388 acres of the world’s most valuable real estate have been slowly taken from military veterans — and how they’re now fighting to take it back.
Part Six of Home of the Brave, “The Promised Land,” is a documentary short by Bronze Star Army veteran and documentary filmmaker Rebecca Murga. The 25-minute film provides an unflinching look at LA’s homeless veteran crisis, letting unhoused heroes give a street-level view of what life is like when your government leaves you behind.
For more on these veterans, their lives, and their struggles, watch “The Promised Land.”
Brentwood School’s response to the ruling was markedly different than UCLA’s. The private high school issued a statement saying the appellate decision “reestablished the opportunity for the school to work with the VA and the plaintiffs on an agreement that principally benefits Veterans.” After issuing his ruling, Judge had Carter pressed Brentwood School and the plaintiffs to come to an agreement on suitable lease terms, but the VA’s rejection of the district court ruling and appeal of the case halted progress on that front.
The school’s statement said it aims to work toward a new agreement that expands the services the school provides “and that Veterans define as supportive to them.”
“Brentwood School admires the passion and dedication of the Veteran plaintiffs who have fought with determination for needed housing on the West LA VA campus,” the statement added.
With the resolution of the appeal, the judges have remanded the case back to Judge Carter to enter judgement in accordance with the 9th Circuit opinion. Carter will undoubtedly attempt to fast-track the building of modular housing villages on the 388-acre VA campus, which the VA had agreed to build before it reversed course and filed its appeal. The district judge’s goal had been to get veterans housed before the rainy season began last year. But instead of rain, LA was gripped by a series of wildfires that destroyed many homes, including those of veterans. The number of unhoused veterans in LA County is currently unknown.
“The quicker we can get these temporary housing units up and immediately get veterans off the street so they have a place to stay in the interim until the permanent housing is built, the better,” said Reynolds in the press briefing. “It’s Christmas — Christmas Eve — it’s raining out.”
“The days of homeless veterans are coming to an end — they are at an end.” — Mark Rosenbaum, plaintiff’s counsel
As holiday gifts go, Rosenbaum said, this is about as good as it gets. Rosenbaum joined the Powers v. McDonough case after working on Valentini v. Shinseki, the previous attempt to right the wrong of veteran homelessness in LA. In Home of the Brave, Rosenbaum described the settlement of that case “the worst mistake in my career, bordering on malpractice.”
Now, as a result of his team’s legal strategy to tie the lack of disabled veteran shelter to health care discrimination, the VA is legally required to fix the housing crisis it created, not because of a 19th-century land trust, but because of modern disability rights law.
“The days of homeless veterans are coming to an end — they are at an end,” Rosenbaum said, crediting the courtroom victory to the vets who refused to give up.
“We owe a great deal of gratitude to these veterans who wouldn’t stop fighting outside the country on behalf of the nation and who fought inside the country to bring about what is right,” Rosenbaum said.
The Home of the Brave newsletter will return with updates when they are available, including information on how more housing will be built at the West LA VA, per the Trump administration’s executive order that required an action plan be delivered to the president by September 6, 2025.
This breakdown of the 9th Circuit ruling is exceptional work. The legal jujitsu of framing homelessness as a healthcare access issue under disability law rather than relying on the 1888 deed is kinda brilliant,because it creates precedent across the entire western district. I've seen firsthand how many vets dunno about their disability rights in housing contexts, and this could actully open pathways beyond just LA. The fact Rosenbaum called Valentini v. Shinseki near-malpractice then built this stronger case shows real evolution in strategey.
This breakdown of the 9th Circuit ruling is exceptional work. The legal jujitsu of framing homelessness as a healthcare access issue under disability law rather than relying on the 1888 deed is kinda brilliant,because it creates precedent across the entire western district. I've seen firsthand how many vets dunno about their disability rights in housing contexts, and this could actully open pathways beyond just LA. The fact Rosenbaum called Valentini v. Shinseki near-malpractice then built this stronger case shows real evolution in strategey.