In this Q&A, Rose Carmen Goldberg, associate director of policy and programs at SLS’s Deborah L. Rhode Center on the Legal Profession, and Matthew Rogowski, a SLS 2L and Army veteran, discuss the Ninth Circuit amicus brief they worked on together, along with co-counsel Harvard Law School Veterans Law and Disability Benefits Clinic. The brief supports unhoused veterans in Los Angeles in their suit against the U.S. Department of Veterans Affairs (VA) for administering its housing and health care programs in a discriminatory manner that denies veterans meaningful access solely because of their disabilities. The brief also tackles a core issue in the suit: the VA’s attempt to lock the veteran plaintiffs out of federal court and sweep their causes of action into the VA administrative benefits adjudication system.

How did this case start?

Matt: This case concerns land in Los Angeles that was donated to the VA in 1888 for the purpose of providing housing and health care to veterans with disabilities. For roughly eighty years, the land was used for permanent housing and access to therapeutic care for tens of thousands of veterans with disabilities. The VA, however, eventually stopped providing these services, and let the grounds fall into disrepair. Instead, it started leasing the land for an oil well, a baseball field, and parking lots, among other things not related to veterans’ welfare.

In 2011, unhoused veterans with severe disabilities sued the VA for its failure to provide housing on the Los Angeles grounds. In 2015, the veterans entered into an agreement with the VA, under which the VA agreed to develop a plan to provide the required housing and supportive services. Under the plan, the VA committed to build 1,200 housing units for veterans. Yet, more than seven years after the settlement, the VA still had not constructed a single of the promised housing units.

In 2022, a class of veterans sued again. They challenged the VA’s failure to provide housing and health care under the Rehabilitation Act of 1973 (Rehab Act), which guarantees equal access to federal programs for people with disabilities. Among other claims and requests for relief, they brought Rehab Act causes of action that included that the VA denies veterans with disabilities access to housing and health care in the most integrated setting appropriate to their needs, and administers their housing and health care programs in a discriminatory manner that denies veterans meaningful access solely because of their disabilities. The veterans won. Among other things, the U.S. District Court for the Central District of California ordered that the VA expedite the construction of housing, the oil well be capped, and the baseball field be locked down. The VA appealed the decision on multiple grounds, bringing the case to the Ninth Circuit. 

What are your main arguments in support of the veteran plaintiffs in your Ninth Circuit amicus brief?

Rose: We focus on a particularly concerning argument raised by the VA, for which the District Court ruled in favor of the veteran plaintiffs. Namely, that the veteran plaintiffs cannot seek relief in federal court for their Rehab Act causes of action, unlike other individuals whose rights have been violated under the Rehab Act. In the VA’s view, the veterans’ causes of action belong in the VA administrative benefits adjudication system because the housing and health care ultimately at stake are VA “benefits.” We break down why this is wrong into two central arguments, with multiple component parts. These are our main points.

First, we explain that the VA’s administrative claims adjudication process simply isn’t intended, designed, or authorized to decide Rehab Act complaints or grant relief to veterans under the Act. A look at the VA system makes clear why. The VA’s administrative claims adjudication system is narrowly focused on determining a claimant’s substantive eligibility for a particular “benefit” as created and defined by statute. A veteran claimant’s assertion of a cause of action under the Rehab Act is neither a “benefit” nor a “claim” as defined in statutes and regulations. Indeed, in this case, the veterans are not seeking a VA benefits determination. They are already eligible for VA benefits, and as a separate matter, are asking that they not be administered in a discriminatory manner. The VA’s benefits adjudication mandate does not include such systemic federal disability law causes of action. Tellingly, while the VA uses pre-set forms for benefits claims and adjudication, there is no Rehab Act form for filing in the benefits system. Moreover, these initial claims proceed on a one-by-one basis and cannot accommodate the type of systemic relief the veteran plaintiffs seek here.

Second, we direct the Court’s attention to the Veterans’ Judicial Review Act (VJRA) to correct the VA’s overly broad interpretation of this key veterans benefits statute. In enacting the VJRA, Congress established appellate review of VA claims decisions, strengthening veterans’ due-process rights as it pertains to those decision. The VA’s argument flies in the face of this clear congressional intent to increase veterans’ access to justice, and a plain reading of the statute. The VA argues that the VJRA requires that any claims remotely “related” to the VA’s provision of benefits be brought through the VA administrative process. And that the veterans’ Rehab Act causes of action here are sufficiently “related” to benefits. This ignores the text of the VJRA, which is actually quite narrow. It provides that VA jurisdiction applies when an issue is “necessary” to a VA decision made under a “law that affects the provision of benefits.” The Rehab Act causes of action here do not satisfy these elements. For one, the Rehab Act is not a law that affects the provision of benefits—it prohibits disability-based discrimination. Similarly, the Rehab Act causes of action are not “necessary to a [VA] decision.” Whether the VA denies veterans with disabilities equal opportunity to receive benefits and services is wholly separate from whether those veterans are eligible for an entitled to such benefits and services—a determination that has already occurred here.

Ultimately, we ask the Ninth Circuit to recognize that because the VA benefits claims process is not an authorized forum to adjudicate the veteran plaintiffs’ Rehab Act causes of action, the only available—and proper—forum is district court. Leaving veterans without a forum to challenge harmful and unlawful VA inaction would break our nation’s fundamental promise to care for those who have served.

What motivated you to work on this amicus brief?

Matt: I wanted to work on this amicus brief to help other veterans. As a veteran myself, I feel a sense of duty to give back to the community. Other veterans, veteran advocates, and veteran service organizations provided me with substantial assistance and mentorship as I was transitioning out of the Army. I understand the struggle of assimilating back into civilian life, especially if you have mental and physical scars from your service. I want to help veterans receive the benefits to which they are entitled and support them in civilian life. This amicus brief gave me valuable experience as a veterans’ advocate and taught me lessons that I hope to take with me into my own veteran pro bono practice once I graduate.

What is at stake in the Ninth Circuit’s decision?

Rose: Unsurprisingly, homelessness is extremely harmful to veterans. Studies show that unhoused individuals with mental health conditions can only meaningfully access needed mental health services if they have stable housing. Research also indicates that unhoused veterans commit suicide at a much higher rate than veterans generally. Even more far-reaching, if the Ninth Circuit fails to recognize the veteran plaintiffs’ right to seek relief in federal court, veterans who experience any number of types of Rehab Act violations and other harms would have nowhere to turn. Such deprivation of basic access to justice—for veterans who risk their lives to protect such rights—simply cannot be.

Rose Carmen Goldberg is associate director of policy and programs of the Deborah L. Rhode Center on the Legal Profession. She is an expert in military and veterans law, with past work including advancing servicemembers and veterans’ rights at the California Attorney General’s Office and representing individual veterans as a Skadden Fellow.