Valentini v. Shinseki (860 F. Supp. 2d 1079, 2012)

PROCEEDINGS: ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS [Docket No. 32]

S. JAMES OTERO, District Judge.

Victor Paul Cruz Courtroom Clerk

This matter is before the Court on Defendants Eric Shinseki and Donna M. Beiter’s (collectively, “Defendants” or “Government”) Motion to Dismiss (“Motion”), filed on October 7, 2011. On October 21, 2011, Plaintiffs filed their Opposition to which the Government filed its Reply on October 25, 2011. The Court received amicus curiae briefs filed by Metabolic Studio, LLC, and the City of Santa Monica in opposition to the Government’s Motion to Dismiss.

The Court found this matter suitable for disposition without oral argument and vacated the hearing scheduled for December 5, 2011. See Fed.R.Civ.P. 78(b). For the following reasons, the Court GRANTS IN PART AND DENIES IN PART the Government’s Motion to Dismiss.

I. FACTUAL AND PROCEDURAL BACKGROUND

The First Amended Complaint (“FAC”) sets forth the following allegations. The individual Plaintiffs in this case are severely disabled veterans with mental disabilities, brain injuries, or both. (See FAC ¶¶ 8-17, ECF No. 24.) As a result of their disabilities, they are homeless and cannot access necessary medical and mental health treatment. (FAC ¶¶ 8-17.)

On June 8, 2011, Plaintiffs filed a lawsuit against the Government. Defendant Eric Shinseki (“Shinseki”) is the Secretary of the United States Department of Veterans Affairs (“DVA”), whose official duties include execution and administration of all laws and programs governed by the DVA. (FAC ¶¶ 47, 48.) Shinseki is responsible for ensuring that the DVA complies with contracts and land grants. (FAC ¶ 48.) Defendant Donna M. Beiter (“Beiter”) is the Director of the Veterans Affairs Greater Los Angeles (“VA GLA”) Health-care System, whose official duties include supervising daily operations and services of all programs operated by the West Los Angeles Campus (“WLA Campus”). (FAC ¶¶ 49, 50.)

Plaintiffs assert six claims: (1) facial discrimination in violation of section 504 of the Rehabilitation Act; (2) denial of meaningful access in violation of section 504 of the Rehabilitation Act; (3) breach of duty as trustee of a charitable trust; (4) accounting for profits; (5) breach of fiduciary duty as trustee of a charitable trust; and (6) improper land deals executed in violation of the Administrative Procedure Act (“APA”). (See generally FAC.)

A. Overview of the Veterans’ Benefits Program

In 1865, Congress created the National Home for Disabled Volunteer Soldiers (“National Home”). (FAC ¶ 85; Act of Mar. 3, 1965, ch. 91, 13 Stat. 509.) The National Home created a series of branch homes for veterans throughout the country. (FAC ¶ 85.) In addition to housing, the National Home also provided the veteran residents food, medical care, recreation activities, and employment opportunities. (FAC ¶ 85.) In 1887, Congress authorized the National Home’s Board of Governors to establish a branch home west of the Rocky Mountains. (FAC ¶ 88.) In 1888, the Pacific Branch of the National Home (“Pacific Branch Home”) opened and housed veterans. (FAC ¶ 90.) In 1930, Congress consolidated the National Home with other veterans’ programs and established the Veterans Administration (“VA”). (FAC ¶ 93; Exec. Order No. 5398 (July 21, 1930).) Accordingly, the branch homes were transferred to the VA. (FAC ¶ 93.) In 1958, Congress repealed the statutory authorization for the National Home. See Act of Sept. 2, 1958, Pub. L. No. 85-857, 72 Stat. 1105 (1958).

In 1989, the DVA, VA’s successor-in-interest, was established as a cabinet-level agency. (FAC ¶ 94.) The DVA is currently divided into three administrations: the Veterans Health Administration (“VHA”); the Veterans Benefits Administration (‘VBA”); and the National Cemetery Administration (“NCA”). (FAC ¶ 73; 38 U.S.C. § 301(c).) The VHA is obligated to provide veterans with medical and hospital services. (FAC ¶ 73; 38 U.S.C. § 7301(b).) To qualify for VHA benefits, a person must have performed active duty in the military and been “discharged or released” from service “under conditions other than dishonorable.” (FAC ¶ 74; 38 U.S.C. § 101(2).)

To receive the “medical benefits package,” a veteran must be enrolled in the VA health-care system. See 38 C.F.R. § 17.36(a)(1). Veterans who qualify for VHA benefits are placed into one of eight priority groups. See 38 C.F.R. § 17.36(b). The priority groups are established by the DVA’s regulations to determine a veteran’s eligibility for benefits. (FAC ¶ 75; 38 C.F.R. § 17.36(b).) Depending on funding, the DVA may prioritize the higher priority groups and provide VHA benefits only to veterans in those groups. (FAC ¶ 75.)

Eligible veterans receive VHA benefits through twenty-one Veterans Integrated Services Networks (“VISN”) around the country. (FAC ¶ 79.) One of the VISNs is the VA Desert Pacific Health Network, which provides services in Southern California through the VA GLA. (FAC ¶ 80.) The VA GLA provides health-care services to veterans at its WLA Campus. (FAC ¶ 83.) The VHA benefits package includes: outpatient medical, surgical, and mental health care; inpatient hospital, medical, surgical, and mental health care; prescription drugs coverage; emergency care; substance abuse treatment; and other services. (FAC ¶ 78; 38 C.F.R. § 17.38(a).)

In addition to VHA’s benefits program, the DVA must provide hospital and medical services “to any veteran for a service-connected disability.” 38 U.S.C. § 1710(a)(1)(A). Veterans who meet certain requirements must be provided hospital care and medical services, regardless of whether the veteran is enrolled in the VHA benefits program. (FAC ¶77; 38 C.F.R. § 17.37(a).)

B. History of the WLA Campus

In 1888, United States Senator John P. Jones and Arcadia B. de Baker donated land — what is now the WLA Campus — for the purpose of establishing and permanently maintaining a branch home for disabled war veterans. (FAC ¶ 84.) The deed (the “1888 Deed”) conveyed 300 acres to the National Home. (FAC If 89.) The 1888 Deed states:

And whereas, the parties hereto of the first part [grantors] in consideration that the party hereto of the second part [National Home] should locate, establish, construct, and permanently maintain a branch of said National Home for Disabled Volunteer Soldiers on a site to be selected by its Board of Managers.... Now therefore, in consideration of the premises and of the location, ... owners of the said Rancho San Vicente y Santa Monica, by such location have given and granted and by these presents do give and grant ... all the following described land and premises, situate lying and being in the County of Los Angeles, State of California ... for the purpose of such branch Home for Disabled Volunteer Soldiers to be thereon so located, established, constructed and permanently maintained.

(FAC ¶ 89; Exs. 1, 2.) In 1899 and 1921, successors to Senator Jones and Mrs. de Baker conveyed additional land to the National Home. (FAC ¶ 89.) The entire WLA Campus conveyed by the 1888 Deed and two later deeds is approximately 387 acres. (FAC ¶ 6.)

For about eighty years, the VA operated the Pacific Branch Home at the WLA Campus, which provided a permanent home for disabled veterans as anticipated by the grantors of the 1888 Deed. (FAC ¶ 6.) During the 1960s and 1970s, the VA ceased accepting new residents at the WLA Campus. (FAC ¶ 94.) Currently, there are approximately 104 buildings on the WLA Campus. (FAC ¶ 95.) Many of the buildings that were once dedicated to permanent housing are now repurposed or have fallen into disuse. (FAC ¶¶7, 95.)

The WLA Campus offers care in the following areas: medicine, surgery, psychiatry, physical medicine and rehabilitation, neurology, oncology, dentistry, geriatrics, and extended care. (FAC ¶ 98.) Additionally, the WLA Campus offers approximately 1,500 beds, and more than 1,150 beds are dedicated to inpatient hospital care or skilled nursing care for elderly veterans. (FAC ¶ 105.) These beds are not available as permanent supportive housing and are used as temporary shelter for veterans with limitations on eligibility. (FAC ¶ 105.) However, there is no permanent housing available to disabled veterans on the WLA Campus. (FAC ¶ 95.)

In addition to the WLA Campus providing health-care services for veterans, the campus is also used for private activities. Many commercial and other non-DVA programs operate on the WLA Campus pursuant to leases, memoranda of understanding, revocable licenses, or enhanced sharing agreements. (FAC ¶¶ 24, 96.) Currently, there are twenty-one land-use agreements with eighteen different partners for the WLA Campus. (Dep’t of Veterans Affairs, West Los Angeles VA Medical Center, Veterans Program Enhancement Act of 1998 (VPEA) Master Plan (2011) (“Master Plan”).) The following are land-use agreements on the WLA Campus: Brentwood School leases twenty acres of land; Richmark Entertainment operates the Wadsworth and Brentwood theaters; Sodexho Marriot Laundry Services operates an old laundry facility in Building -224; South Coast AQMD conducts studies on pollution levels out of a temporary trailer; TCM, LLC utilizes 1.5 acres of land at the Veterans Garden and adjacent parking areas for a community farmer’s market; Twentieth Century Fox has an agreement to build a temporary butler building for storage in the industrial area of the campus; University of California, Los Angeles utilizes the baseball stadium for their baseball program; West-side Breakers Soccer Club and Galaxy Alliance Soccer have nonexclusive use of the Macarthur Field and parking lot thirty-eight; West Side, LLC operates vehicular parking areas throughout the WLA Campus; and movie and television production companies use portions of the WLA Campus for short-term, non-recurring filming projects. (FAC ¶ 24; see Master Plan at 36-37.) Due to these land-use deals, veterans have limited access to, or are prohibited from accessing, 110 out of the 387 acres of the WLA Campus. (FAC ¶ 96.)

C. Housing Services at the WLA Campus

VA GLA provides services for veterans at the WLA Campus, three ambulatory clinics, and nine community clinics located throughout its service area. (FAC ¶ 114.) Although the VA GLA offers medical services at these facilities, it does not offer permanent supportive housing to disabled veterans at the WLA Campus. (FAC ¶ 104.) However, temporary shelter services are offered through the Domiciliary Residential Rehabilitation and Treatment Program (“Domiciliary”). (FAC ¶ 104.) Many of the beds at the Domiciliary are dedicated to programs focused on substance abuse recovery, not serious mental health issues. (FAC ¶ 104.) The Domiciliary refuses admission to veterans who have serious mental disabilities involving psychosis or who take psychotropic medication. (FAC ¶ 104.) The VA GLA offers beds, including the beds at the Domiciliary, as temporary shelter with limitations on eligibility that often exclude homeless veterans with serious disabilities. (FAC ¶ 105.)

In addition to the programs operated by the VA GLA, several residential programs are operated by third parties on the WLA Campus. These third-party programs are not designed to meet the needs of veterans with severe mental disabilities or brain injuries. (FAC ¶¶ 106, 110.) Lastly, veterans have access to additional transitional housing beds through VA GLA’s contract with off-site providers and to a permanent housing through VA GLA’s housing voucher program, but these beds are not located near the WLA Campus or other VA GLA facilities where VBA benefits are offered. (FAC ¶¶ 113-14.)

D. Plaintiffs’ Claims

Plaintiffs’ claims fall into three categories:

(1) claims for violations of the Rehabilitation Act (claims 1 and 2);

(2) claims related to the charitable trust, including breach of fiduciary duty and an accounting (claims 3, 4, and 5); and

(3) a claim for violations of the APA (claim 6).

First, Plaintiffs bring two claims under the Rehabilitation Act. (FAC ¶¶ 116, 117.) In support of Plaintiffs’ facial discrimination claim, Plaintiffs assert that the Government refused to provide them admission to housing programs or services that are necessary for treatment of severe mental disabilities. (FAC ¶ 116.) According to Plaintiffs, the Government facially discriminates against Plaintiffs because of their severe mental disabilities. (FAC ¶ 116.) Additionally, Plaintiffs posit that the Government denied Plaintiffs meaningful access to services, including the reasonable accommodation of permanent supportive housing. (FAC ¶ 117.) Plaintiffs pray the Court to declare that: the design and implementation of the VHA benefits program within VA GLA facially discriminates against Plaintiffs solely by reason of their disability; and the Government is denying Plaintiffs meaningful access to the VHA benefits offered by the VA GLA solely by virtue of their disability. (FAC Req. for Relief.) Plaintiffs seek an injunction directing that the Government provide Plaintiffs permanent supportive housing as a reasonable accommodation for their disabilities. (FAC Req. for Relief.)

Second, Plaintiffs assert that the 1888 Deed created a charitable trust whereby the DVA holds the WLA Campus in trust for disabled veterans as the intended beneficiaries. (FAC ¶301.) Plaintiffs allege that the Government’s authorization of uses that do not directly contribute to the operation of a home for disabled veterans is a breach of the charitable trust. (FAC ¶302.) Plaintiffs pray the Court to declare that: the Government’s acceptance of the land transferred under the 1888 Deed created a charitable trust; and the Government has breached and continues to breach its fiduciary duties as trustees of the charitable trust. (FAC Req. for Relief.) Plaintiffs seek an injunction mandating that the Government faithfully execute its obligations as trustee and use the WLA Campus solely for purposes directly related to providing supportive housing for disabled veterans, or, in the alternative, a court order mandating that the Government refrain from allowing the current use of the WLA Campus for purposes not related to supportive housing for disabled veterans to continue. (FAC Req. for Relief.) Plaintiffs also seek an injunction requiring an accounting of profits of all money received by the DVA or VA GLA from land-use agreements for land that is used for any purpose not directly related to providing supportive housing for disabled veterans and deposit all such money in an account to be used solely for the purpose of providing supportive housing and related services. (FAC Req. for Relief.) Third, Plaintiffs assert that land deals entered into by VA GLA were improperly executed under the Veterans’ Benefits Act in violation of the APA. (FAC ¶ 312.) Plaintiffs allege that they have suffered procedural and substantive injuries. (FAC ¶ 313.) Plaintiffs seek an injunction prohibiting VA GLA from executing under 38 U.S.C. §§ 8151-8153 (the statutes that authorize enhanced sharing agreements) any agreements that do not concern the sharing of health-care resources. (FAC Req. for Relief.) Plaintiffs pray the Court to declare that the Government violated 38 U.S.C. §§ 8151-8153 and 8161-8169 by entering into a number of enhanced sharing agreements unauthorized by any law or regulation. (FAC Req. for Relief.)

E. Procedural Background

On October 7, 2011, the Government filed its Motion to Dismiss. (See generally Mot., ECF No. 32.) First, the Government argues that Plaintiffs’ APA claim should be dismissed because Plaintiffs: (1) lack standing; and (2) fail to state a legally viable claim. (See generally Mot.) Second, the Government asserts four arguments to dismiss Plaintiffs’ charitable trust claims: (1) lack of standing; (2) sovereign immunity; (3) lack of subject matter jurisdiction; and (4) failure to state a claim for breach of fiduciary duty. (See generally Mot.) Lastly, the Government asserts that Plaintiffs’ Rehabilitation Act claims should be dismissed because: (1) the Veterans’ Judicial Review Act bars jurisdiction over section 504 of the Rehabilitation Act; and (2) Plaintiffs fail to state a viable facial discrimination claim. (See generally Mot.) On October 21, 2011, Plaintiffs filed their Opposition. (See generally Opp’n, ECF No. 35.) The Court received amicus curiae briefs filed by Metabolic Studio, LLC (“Metabolic Studio”) and the City of Santa Monica in opposition to the Government’s Motion to Dismiss. (See generally Metabolic Studio Amicus Curiae Br., ECF No. 44; City of Santa Monica Amicus Curiae Br., ECF No. 41.) On October 25, 2011, the Government filed a Reply to Plaintiffs’ Opposition. (See generally Reply, ECF No. 40.)

On October 27, 2011, the Court determined that it would befit from additional briefing pertaining specifically to argument about the creation of a charitable trust. (Oct. 27th Order Req. Additional Br’g, ECF No. 43.) Both parties submitted Supplemental Briefs, to which the opposing party replied. On November 18, 2011, the Court notified the parties that the Ninth Circuit withdrew its opinion for Veterans for Common Sense v. Shinseki, 644 F.3d 845 (9th Cir.2011) and decided to rehear the appeal en banc. (Nov. 18th Order Req. Additional Br’g, ECF No. 56.) Because both Plaintiffs and the Government cited Veterans for Common Sense in their briefs regarding jurisdiction for the Rehabilitation Act claims, the Court allowed additional briefing to address the jurisdictional question for the Rehabilitation Act claims. (Nov. 18th Order Req. Additional Br’g.) On November 23, 2011, Plaintiffs filed their Supplemental Brief (Pis.’ Suppl. Br. in Supp. of Opp’n, ECP No. 57), to which the Government replied on December 1, 2011 (Defs.’ Suppl. Br. in Supp. of Mot., ECF No. 59).

II. DISCUSSION

A. Legal Standard

A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of the claims asserted in the complaint. Ileto v. Glock, Inc., 349 F.3d 1191, 1199-1200 (9th Cir.2003). In evaluating a motion to dismiss, a court accepts the plaintiffs material allegations in the complaint as true and construes them in the light most favorable to the plaintiff. Shwarz v. United States, 234 F.3d 428, 435 (9th Cir.2000). Dismissal is proper if the complaint lacks a “cognizable legal theory” or “sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.1988).

Rule 12(b)(6) must be read in conjunction with Rule 8(a), which requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.Civ.P. 8(a)(2); see Ileto, 349 F.3d at 1200. “While legal conclusions can provide the complaint’s framework, they must be supported by factual allegations.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009). To plead sufficiently, a plaintiff must proffer “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim is facially plausible when “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949. Rule 8(a)(2) requires that the allegations in the complaint “give the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests.” Fed. R.Civ.P. 8(a)(2).

B. Plaintiffs’APA Claim

The Government has entered into various land-use agreements at the WLA Campus. (FAC ¶24; Master Plan at 36-37.) The law provides three mechanisms the DVA may use to enter into leases or other agreements related to its property: (1) enhanced sharing agreements (“ESAs”) under 38 U.S.C. §§ 8151-53; (2) enhanced use leases (“EULs”) under 38 U.S.C. §§ 8161-69; and (3) outleases under 38 U.S.C. §§ 8122 and 2412. The parties agree that outleases are not at issue in this case. (Mot. 4-6; Opp’n 7.)

In 2008, Congress prohibited the DVA from entering into EULs on the WLA Campus unless specifically authorized by law. (Mot. 4; see 38 U.S.C. § 8162(c)(1) (“[T]he entering into an [EUL] covering any land or improvement described in ... section 224(a) of the Military Construction and Veterans Affairs and Related Agencies Appropriations Act, 2008 shall be considered to be prohibited by such sections unless specifically authorized by law.”).) Under section 224(a), “[t]he Secretary of Veterans Affairs may not declare as excess to the needs to the Department of Veterans Affairs, or otherwise take any action to exchange, trade, auction, transfer, or otherwise dispose of, or reduce the acreage of, Federal land and improvements at the Department of Veterans Affairs [WLA Campus].” Act of Dec. 26, 2007, Pub. L. No. 110-161, 121 Stat. 1844. Thus, as of 2008, the only avenues available for the DVA to enter into land-use agreements for the land on the WLA Campus (unless specifically authorized by law) were ESAs or outleases.

In their APA claim, Plaintiffs allege that the DVA improperly executed its land-use deals as ESAs, even though ESAs only authorize land-use deals pertaining to sharing of health-care resources. (FAC ¶ 312.) Plaintiffs assert that many of the DVA’s ESAs have little or no connection to health-care resources (FAC ¶ 272), and therefore entering into these land-use deals as ESAs was unlawful.

According to Plaintiffs, the DVA was required (prior to 2008) to execute those land-use agreements unrelated to sharing health-care resources as EULs (which are not restricted only to deals pertaining to sharing of health-care resources), rather than ESAs (which are so limited). (FAC ¶ 312.) This distinction is relevant because the procedure for entering an EUL mandates additional procedural requirements with which the DVA did not comply. (FAC ¶ 270.) Under EULs, the DVA must determine that the EULs “provide appropriate space for an activity contributing to the mission of [the DVA]” or the proceeds from EULs are used in a way that “would result in a demonstrable improvement of services to eligible veterans.” 38 U.S.C. § 8162(a)(2)(A)(I), (a)(2)(B). If the DVA designates a property to be leased pursuant to an EUL, the DVA is required to provide a public hearing and public notice. 38 U.S.C. § 8163(a)-(c). Plaintiffs claim that after 2008 the DVA was not authorized to enter land-use agreements unrelated to sharing healthcare resources at all. (Opp’n 8.)

The Government moves to dismiss Plaintiffs’ APA claim for lack of subject matter jurisdiction because Plaintiffs lack standing. To determine whether Plaintiffs have standing, the Court must undertake two separate inquiries. First, the Court must determine whether Plaintiffs have constitutional standing under Article III. Second, if Plaintiffs meet the requirements for constitutional standing, the Court must determine whether Plaintiffs meet the prudential standing requirements — i.e., whether Plaintiffs have a right to sue under the APA.

1. Article III Standing

Article III of the Constitution limits the exercise of judicial power to “Cases” and “Controversies.” U.S. Const, art. III, § 2; Lujan v. Defenders of Wildlife, 504 U.S. 555, 559, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). For a case to satisfy a federal court’s case-or-controversy requirement, Article III, Section 2 requires an “irreducible” minimum of standing. Id. at 560, 112 S.Ct. 2130. “The plaintiff has the burden of establishing the three elements for Article III standing: (1) he or she has 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.” Salmon Spawning & Recovery Alliance v. Gutierrez, 545 F.3d 1220, 1225 (9th Cir. 2008) (citing Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130). The Government attacks Plaintiffs’ ability to establish the first and third requirement: injury in fact and redressability. (Mot. 4-5.)

a. Injury in Fact

Under the injury-in-fact requirement, a plaintiff must show “it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). This injury can be either substantive or procedural. However, if Plaintiff is asserting a purely procedural injury, then “[t]o satisfy the injury in fact requirement, a plaintiff ... must show that the procedures in question are designed to protect some threatened concrete interest of his that is the ultimate basis of his standing.” Citizens for Better Forestry v. U.S. Dep’t of Agric., 341 F.3d 961, 969 (9th Cir.2003) (internal quotation marks omitted). “[D]e-privation of a procedural right without some concrete interest that is affected, by the deprivation — a procedural right in vacuo — is insufficient to create Article III standing.” Summers v. Earth Island Inst., 555 U.S. 488, 496, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009).

The Government argues that Plaintiffs have failed to allege a substantive injury, and that to the extent Plaintiffs rely on a purely procedural injury, the injury is not coupled with a “concrete interest” such that Article III standing exists. (Mot. 4, 5 n.5.) Plaintiffs argue that they have alleged both substantive and procedural injury sufficient to establish standing. (FAC ¶¶ 274-75.)

i. Substantive Injury

Plaintiffs contend that they suffered a substantive injury. (FAC ¶ 275.) According to Plaintiffs, when the VA GLA entered into ESAs after 2008, Plaintiffs lost the assurance that land deals unrelated to the sharing of health-care resources on the WLA Campus would result in appropriate space for activities for veterans. (FAC ¶ 275; Opp’n 8-9.)

The Government characterizes Plaintiffs’ claimed substantive injury as the denial of supportive housing for disabled veterans by the DVA’s decision to enter into land-use agreements under ESAs. (Mot. 5.) The Government argues that Plaintiffs do not have a right to supportive housing for disabled veterans (Mot. 4), and therefore Plaintiffs are not injured by the DVA’s decision to enter into land-use agreements as ESAs rather than as EULs. (Mot. 5.)

The substantive injury in this case is not simply that Plaintiffs do not have permanent supportive housing; rather, it is that portions of the WLA Campus are not being used to benefit veterans. The purpose and mission of the DVA, combined with the statutes that regulate the DVA’s ability to lease' its land, create a background rule that absent compliance with the land-leasing statutes, any land owned by the DVA must be used in a manner that benefits veterans.

The purpose of sharing health-care resources, which the DVA is authorized to do pursuant to the ESA statutes, is “to strengthen the medical programs at Department facilities and improve the quality of health care provided veterans ... by authorizing the Secretary to enter into agreements with health-care providers in order to share health-care resources ... while ensuring no diminution of services to veterans.” 38 U.S.C. § 8151 (emphases added). Thus, any land-use agreements made pursuant to ESAs are to benefit veterans by improving health care for veterans.

Similarly, the restrictions placed on EULs support the assumption that property owned by the DVA must be used in a manner that benefits veterans. Before entering an EUL, the DVA must determine that the following three criteria have been met:

(1) at least part of the use of the property under the lease will be to provide appropriate space for an activity contributing to the mission of the Department;

(2) the lease will not be inconsistent with and will not adversely affect the mission of the Department; and

(3) the lease will enhance the use of the property.

38 U.S.C. § 8162(a)(2)(A)(i)-(iii). Even if the DVA determines that these three criteria have not been met, the DVA may enter into an EUL if the proceeds from the EUL are used in a way that “would result in a demonstrable improvement of services to eligible veterans.” 88 U.S.C. § 8162(2)(a)(B). Any lease made pursuant to EULs requires the property itself or the proceeds derived therefrom be used for the benefit of veterans. The combination of these two land-use statutes (authorizing ESAs and EULs) makes it clear that Congress’s intention was to ensure that property leased to third parties is primarily used to benefit veterans.

After 2008, Congress prohibited the DVA from entering into EULs at the WLA Campus. See 38 U.S.C. § 8162(c)(1). Unlike EULs, land-use agreements made pursuant to ESAs do not require any additional procedural requirements. After 2008, the DVA’s land-use agreements entered into pursuant to ESAs that do not provide for sharing of health-care resources were unauthorized and resulted in lost access to space and opportunities that benefit veterans on the WLA Campus. Because these allegedly unauthorized ESAs do not benefit veterans, this lost access to space and opportunities is a substantive injury sufficient to satisfy Article Ill’s standing requirements.

ii. Procedural Injury

Plaintiffs allege that ESAs can only be used for activities that benefit veterans or for improvements in the VA GLA’s services. (FAC ¶ 275.) Plaintiffs have argued that prior to 2008, if the DVA wanted to enter land-use agreements unrelated to sharing health-care resources, it was required to execute the agreements as EULs, rather than ESAs. (Opp’n 9.) EULs have certain procedural requirements, including: a public hearing; notice of the proposed lease and of the hearing; and notice of the DVA’s intention to enter into such lease in the Federal Register. 38 U.S.C. § 8163(a)-(c). Therefore, Plaintiffs also allege that they have suffered procedural injury, because they were denied procedural protections, including the opportunity to make their views known at public hearings and the opportunity to have access to publicly available descriptions and justifications of the DVA’s proposed and final land deals. (FAC ¶¶ 274, 313.)

In a case involving procedural injury, a plaintiff must allege that: “(1) the [agency] violated certain procedural rules; (2) these rules protect [a plaintiffs] concrete interest; and (3) it is reasonably probable that the challenged action will threaten their concrete interests.” City of Sausalito v. O’Neill, 386 F.3d 1186, 1197 (9th Cir.2004) (alteration in original) (quoting Citizens for Better Forestry, 341 F.3d at 969-70).

The Government appears to concede that Plaintiffs have sufficiently alleged a procedural injury, but argues that the procedural injury is not connected to a “concrete interest” such that the procedural injury satisfies Article Ill’s standing requirements. The Government characterizes the “concrete interest” put forward in this case as Plaintiffs’ interest in a particular form of supportive housing for veterans, and argues that this interest is not harmed by the DVA’s decision to enter into ESAs rather than EULs. (Mot. 4.) Plaintiffs, however, allege that they have a concrete interest that property on the WLA Campus leased pursuant to ESAs be used for activities that benefit veterans — e.g., health-care resource sharing. (Opp’n 8-9.)

Plaintiffs do have a concrete interest in how the WLA Campus is used. The WLA Campus was created to benefit veterans. (See Master Plan at 6 (WLA Campus was “donated to establish the Pacific Branch of the National Home for Disabled Veterans”).) Currently, the WLA Campus provides a “full continuum of medical services” to benefit veterans. (Master Plan at 6.) Plaintiffs have used and would like to continue to use the services provided at the WLA Campus. (FAC ¶¶ 118-250.) These interests are concrete. Where the agency action complained of pertains to land-use decisions, Plaintiffs hoping to meet the “concrete injury” test “must allege that they will suffer harm by virtue of their geographic proximity to and use of areas that will be affected by the [agency’s] policy.” Citizens for Better Forestry, 341 F.3d at 971. Here, the individual Plaintiffs are homeless veterans in the Los Angeles area who used, and would like to continue to use, the services at the WLA campus. (FAC ¶¶ 118-250.) Plaintiffs established a geographic nexus because they will suffer harm by virtue of their proximity to the WLA Campus if the land is not used for them benefit. This is not a situation where Plaintiffs are veterans who live at the other end of the county from the WLA Campus with no intent or plan to use the services provided at the WLA Campus. It is precisely these interests that the procedural rules sought to protect. The explicit purpose of ESAs, which do not require the additional procedural requirements, is “to strengthen the medical programs at Department facilities and improve the quality of health care provided veterans ... by authorizing the Secretary to enter into agreements with health-care providers in order to share health-care resources.” 38 U.S.C. § 8151. Any ESA that does not provide for sharing of health-care resources results in lost access to space and opportunities that benefit veterans. Under EULs, the DVA must determine that the EULs “provide appropriate space for an activity contributing to the mission of [the DVA]” or the proceeds from EULs are used in a way that “would result in a demonstrable improvement of services to eligible veterans.” 38 U.S.C. § 8162(a)(2)(A)®, (a)(2)(B). The combination of these statutes makes crystal clear that Congress’s intention was to ensure that the DVA’s land was used primarily to benefit veterans. Finally, it is already demonstrated that the failure to abide by the procedures has resulted in injury

to the concrete interest. Plaintiffs were not given their procedural rights to comment on the proposed land-use agreements before they were executed, and as a result, land on the WLA Campus is being used in ways that do not benefit veterans. “Plaintiffs, alleging procedural injury ‘must show only that they have a procedural right that, , if exercised, could protect their concrete interest.’” Salmon Spawning, 545 F.3d at 1226 (citation omitted). If Plaintiffs had been provided notice of the proposed land-use leases or given an opportunity to participate in public hearings, they could have protected their interest in ensuring that the WLA Campus be used in a manner that benefits veterans. It is true that no one knows for sure whether the existing land-use agreements would have been entered anyway even if the DVA had followed the EUL procedures; but absolute certainty in what decisions would have been reached had different procedures been followed is neither possible nor required.

The Government misses the mark in arguing that Plaintiffs do not have a right to permanent supportive housing. In their APA claim, Plaintiffs are not seeking an injunction ordering the Government to provide permanent supportive housing. Plaintiffs merely seek an injunction forbidding the Government from executing agreements as ESAs that do not concern sharing of health-care resources. (FAC Req. for Relief.) Because Plaintiffs have alleged both a substantive injury (that the land at the WLA Campus is not being used to benefit veterans) and a procedural injury coupled with a concrete interest (denial of notice and ability to comment, plus an interest in how the WLA Campus is used), Plaintiffs have met Article Ill’s injury-in-fact requirement to establish standing to pursue their APA claims.

b. Redressability

In addition to the injury-in-fact requirement, Plaintiffs must also establish that their injury is likely to be redressed by a favorable court decision. Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130. “Only a person who has been accorded a procedural right to protect his concrete interest can assert that right without meeting all the normal standards for redressability and immediacy.” Summers, 555 U.S. at 496, 129 S.Ct. 1142 (internal quotation marks omitted).

Where, as here, Plaintiffs allege procedural injury, the redressability requirement is relaxed. For procedural injury, Plaintiffs “need not demonstrate that the ultimate outcome following proper procedures will benefit them.” Cantrell v. City of Long Beach, 241 F.3d 674, 682 (9th Cir.2001). Instead, “[p]laintiffs alleging procedural injury ... need to show only that the relief requested — that the agency follow the correct procedures — may influence the agency’s ultimate decision of whether to take or refrain from taking a certain action.” Salmon Spawning, 545 F.3d at 1226-27; see also Lujan, 504 U.S. at 573 n. 7, 112 S.Ct. 2130 (noting that a plaintiff “living adjacent to the site for a proposed dam has standing to challenge the licensing agency’s failure to prepare an environmental impact statement, even though he cannot establish with any certainty that the statement will be withheld or altered.”). Accordingly, Plaintiffs need not assert that the DVA’s land-use agreements pursuant to EULs would have resulted differently — for instance, permitting activities that only benefit veterans. For the purpose of redressability, it is sufficient that the DVA’s decision to lease property could have been influenced by a public hearing to address possible effects the proposed leases would have on services to veterans. See 38 U.S.C. § 8163(a).

The Government contends that even if Plaintiffs were injured by the DVA’s decision to enter into ESAs — thereby depriving them of certain procedural protections that apply to proposed EULs — Plaintiffs’ injury cannot be redressed by a favorable court decision because the DVA is now prohibited from entering into EULs. (Mot. 5.) Because the DVA is prohibited from using EULs, the Government asserts that Plaintiffs are not injured by the denial of procedural protections that Congress has now prevented the DVA from providing. (Mot. 5.)

The relief Plaintiffs seek under their APA claims is not that land-use agreements be executed as EULs going forward. (FAC Req. for Relief.) Rather, Plaintiffs seek: (1) a declaration that the existing land-use agreements entered as ESAs unrelated to sharing health-care resources are unauthorized by law or regulation; and (2) an injunction prohibiting the DVA from entering into ESAs in the future that do not concern the sharing of health-care resources: (FAC Req. for Relief.) “Redressability depends on whether the court has the ability to remedy the alleged harm.” Nuclear Info. & Res. Serv. v. Nuclear Regulatory Comm’n, 457 F.3d 941, 955 (9th Cir.2006). The Court has the ability to declare unlawful the current land-use agreements entered into pursuant to ESAs that do not relate to health-care resource sharing and to enjoin the Government from entering into future ESAs unrelated to health-care resource sharing. Such relief would free the land on the WLA Campus to be used to benefit veterans and thereby remedy Plaintiffs’ asserted harm.

For the foregoing reasons, Plaintiffs have established the requirements for Article III standing.

2. Prudential Standing

The Government contends that Plaintiffs lack prudential standing. (Mot. 6-8.) Under prudential standing, the Court must determine whether “a particular plaintiff has been granted a right to sue by the statute under which he or she brings suit.” City of Sausalito, 386 F.3d at 1199. Because the Veterans’ Benefit Act does not provide for a private right of action, Plaintiffs’ challenge to the DVA’s decision to enter into certain land-use agreements must be brought under the APA.

Under the APA, “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” 5 U.S.C. § 702. “Where no other statute provides a private right of action, the ‘agency action’ complained of must be final agency action.’ ” Norton v. S. Utah Wilderness Alliance (“SUWA”), 542 U.S. 55, 61-62, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004) (emphasis in original) (quoting 5 U.S.C. § 704). The scope of the judicial review is explained in § 706:

To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall—

(1) compel agency action unlawfully withheld or unreasonably delayed; and

(2) hold unlawful and set aside agency action, findings, and conclusions found to be—

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity;

(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;

(D) without observance of procedure required by law;

(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or

(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.

5 U.S.C. § 706. Notwithstanding this provision, a plaintiff “cannot seek wholesale improvements of [a] program by court decree, rather than in the offices of the Department or the halls of Congress, where programmatic improvements are normally made.” Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 891, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) (emphasis in original). The Government argues that Plaintiffs’ APA claim is improper because they do not challenge agency actions that are discrete or final. (Mot. 6-8.)

a. Discrete Agency Action

The Government argues that Plaintiffs lack prudential standing under the APA because they fail to allege a discrete agency action. (Mot. 6.) An agency action “includes the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” 5 U.S.C. § 551(13). “All those categories involve circumscribed, discrete agency actions.” SUWA 542 U.S. at 62, 124 S.Ct. 2373.

The Government relies on SUWA to support its contention that Plaintiffs must allege a discrete agency action to have standing under the APA. (Mot. 6.) In SUWA the Supreme Court held that an APA suit under § 706(1) to compel agency action unlawfully withheld or unreasonably delayed “can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take.” SUWA, 542 U.S. at 64, 124 S.Ct. 2373 (emphases in original). “This interpretation effectively precludes enforcement of broad statutory mandates under section 706(1), insofar as a broad mandate typically is not one that requires discrete agency action.” Public Lands for the People, Inc. v. U.S. Dept. of Agric., 733 F.Supp.2d 1172, 1183 (E.D.Cal.2010).

However, Plaintiffs bring their APA claim under § 706(2) not § 706(1). (FAC ¶ 314.) The Government claims that the holding in SUWA is not limited to challenges brought pursuant to § 706(1), but it equally applies to challenges to final agency action brought pursuant to § 706(2). (Mot. 6 n.6.) According to the Government, Plaintiffs lack prudential standing because the duty to provide permanent supportive housing is not a discrete duty that the DVA is required to take. (Mot. 6.)

The Court does not agree with the Government that SUWA’s holding applies to challenges to final agency actions brought pursuant to § 706(2). Under § 706(2), a court reviews “the validity of the final agency action that was taken, not — as in SUWA — demanding that the agency take some action that it has not taken.” Or. Natural Desert Ass’n v. Bureau of Land Mgmt., 625 F.3d 1092, 1119 (9th Cir.2010). A final agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” which renders it invalid under § 706(2)(A), need not be a “discrete agency action” under SUWA as the Government suggests. See id.; see also Nw. Envtl. Def. Ctr. v. Bonneville Power Admin., 477 F.3d 668, 681 n. 10 (9th Cir.2007) (finding that SUWA “is distinguishable from the instant case because [SI7WA] dealt with the power of courts to ‘compel agency action unlawfully withheld’ under 5 U.S.C. § 706(1)[,]” whereas the petitioners challenge a final agency action under § 706(2)).

There are situations where a challenge to an agency action will prevail under § 706(2), but fail under § 706(1). For example, a final agency action “could be arbitrary and capricious under section 706(2) for failing to analyze specific factors even though the omitted analysis could not separately be compelled under § 706(1) as an action that the agency was ‘required to take.’ ” Public Lands for the People, 733 F.Supp.2d at 1183-84 (citing Or. Natural Desert Ass’n v. Bureau of Land Mgmt., 531 F.3d 1114, 1140 (9th Cir.2008), amended and superseded by Or. Natural Desert Ass’n, 625 F.3d 1092). There may be situations “where a statutory directive does not require action, [and then] the statute may be so ‘broad’ that it cannot be enforced under section 706(1) without being too broad to be enforced under section 706(2).” Id. at 1184. Thus, the holding in SUWA is inapplicable to challenges under § 706(2)(A), and Plaintiffs do not need to allege a discrete agency action to pursue their claim.

Even if Plaintiffs were required to allege discrete agency actions, they have adequately done so. In their APA claim, Plaintiffs are not challenging the DVA’s failure to provide permanent supportive housing. Plaintiffs are challenging the DVA’s decision to enter into specific land-use agreements pursuant to ESAs. The specific land-use agreements to which Plaintiffs object constitute discrete agency action.

b. Final Agency Action

The Government also argues that to the extent Plaintiffs’ APA claim is based on the VA GLA’s Master Plan, Plaintiffs fail to allege that the Master Plan is a final agency action. (Mot. 7.) “The right of judicial review under the APA is limited to ‘final agency action for which there is no other adequate remedy in a court.’ ” Siskiyou Reg’l Educ. Project v. U.S. Forest Serv., 565 F.3d 545, 553 (9th Cir.2009) (quoting 5 U.S.C. § 704). Plaintiffs contend that the DVA violated its statutory mandate under the statutes authorizing ESAs when it executed land-use agreements for activities unrelated to healthcare resource sharing. (Opp’n 11.)

Here, Plaintiffs do not seek wholesale improvements of the DVA’s programs through their APA claim. Plaintiffs do not challenge the VA GLA’s Master Plan in its entirety. Rather, Plaintiffs contest specific land-use agreements between the DVA and private and commercial entities, which are referenced in the VA GLA’s Master Plan. (FAC ¶¶ 260-63; see Master Plan.) An agency action is final if two conditions are met. “First, the action must mark the consummation of the agency’s decisionmaking process — it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which rights or obligations have been determined, or from which legal consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177-78, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (internal citation and quotation marks omitted). The DVA’s decisions are not tentative or interlocutory, but rather are finalized land-use agreements. The DVA’s execution of land-use agreements pursuant to ESAs fixes legal obligations between itself and its leasing partners. Because the ESAs are final and fix legal obligations between the DVA and private entities, these ESAs are final agency actions. Plaintiffs challenge to the DVA’s decision to enter into ESAs is sufficient to establish standing pursuant to § 706(2). Plaintiffs have established both constitutional and prudential standing. Because standing was the only ground on which the Government sought to dismiss Plaintiffs’ APA claim, the Motion is DENIED as to claim 6.

C. Plaintiffs’ Charitable Trust Claims

Plaintiffs’ third, fourth, and fifth causes of action (the “charitable trust claims”) are based on Plaintiffs’ allegation that when Senator John P. Jones and Arcadia B. de Baker donated the land that is now the WLA Campus to the Government, a charitable trust was created for which disabled veterans are the beneficiaries and the Government is trustee. (FAC ¶¶ 300-310.) Plaintiffs allege that under the terms of the charitable trust, the Government, as trustee, may only use the land at the WLA Campus for purposes that “directly contribute to the establishment and permanent operation of a home for disabled veterans.” (FAC ¶ 301.) By using the land (and authorizing third parties to use the land) for other purposes, Plaintiffs claim the Government has breached its fiduciary duties as trustee. (FAC ¶ 302.)

The third cause of action alleges breach of fiduciary duty as trustee, the fourth cause of action seeks an accounting, and the fifth cause of action seeks mandamus relief. (See generally FAC.) The mandamus claim is pled in the alternative, on the theory that pursuant to the terms of the charitable trust, the Government has a non-discretionary fiduciary duty to use the land at the WLA Campus only for the purpose of housing disabled veterans. (Opp’n 14 n.7.) As relief, Plaintiffs seek an injunction requiring the Government to faithfully execute its obligations as trustee and to utilize the WLA Campus solely for purposes that directly relate to providing a home for disabled veterans or, in the alternative, an order mandating that the Government refrain from allowing the current uses of the WLA Campus not directly related to providing a home for disabled veterans to continue. (FAC Req. for Relief.) Plaintiffs also seek an injunction requiring an accounting of all profits received by the DVA or VA GLA as a result of the land-use agreements for the WLA Campus under which the land is used for any purpose not directly related to providing a home for disabled veterans. (FAC Req. for Relief.)

The Government presents four arguments why the Court should dismiss the charitable trust claims: first, Plaintiffs lack Article III standing for their charitable trust claims (Mot. 8); second, the charitable trust claims are barred by sovereign immunity (Mot. 8-10); third, the Court lacks jurisdiction, as the charitable trust claims do not present a federal question sufficient to invoke the Court’s jurisdiction under 28 U.S.C. § 1331, and pendent jurisdiction under 28 U.S.C. § 1367 is not appropriate because the charitable trust claims are not sufficiently related to Plaintiffs’ other causes of action (Mot. 10-13); finally, Plaintiffs have simply failed to state a claim for breach of fiduciary duty (Mot. 17-20). The Court will analyze each of these arguments in turn.

1. Article III Standing

As discussed above, Article III standing requires: (1) that the plaintiff have suffered an injury in fact; (2) that the injury was caused by defendant’s conduct; and (3) that the injury is likely to be redressed by a favorable court decision. Salmon Spawning, 545 F.3d at 1225. The Government contends that Plaintiffs have failed to establish redressability, because even if Plaintiffs prevailed on their charitable trust claims, the Government might not have sufficient funding to construct housing for disabled veterans. (Mot. 8.) And even if the Government did construct housing for disabled veterans as a result of this lawsuit, other disabled veterans may be found to be in greater need than the individual Plaintiffs in this action. (Mot. 8.)

The Government also avers, without stating any supporting rationale, that Plaintiffs have failed to allege injury in fact. (Mot. 8.) Perhaps the Government seeks to rely on the same arguments it made with respect to the APA claim, although this is not made clear in the Government’s brief. Plaintiffs, however, claim that the Government has impaired the trust assets by permitting land usage inconsistent with the purpose of the charitable trust, of which Plaintiffs are the beneficiaries. (FAC ¶ 302.) The Court finds that this allegation — that the assets of the trust (i.e., the land) have been misappropriated — is sufficient to satisfy Article Ill’s injury-in-fact requirement. Because the injury alleged is misappropriation of trust assets (as opposed to denial of housing), this injury can be remedied by an order requiring the Government to refrain from using the land for purposes not directly related to providing housing for disabled veterans.

Plaintiffs also allege the injury of not receiving housing at the WLA Campus, an injury Plaintiffs hope the Court will remedy by requiring the Government to provide such housing. That the Government may not have sufficient funds to actually provide the housing if the Court requires it to do so is not sufficient to defeat the redressability requirement of Article III. If it were, every defendant in every case could argue that it does not have the funds necessary to pay a potential judgment and thereby get the case against it dismissed on standing grounds. In response to the Government’s argument that other disabled veterans may receive the benefit of any housing that is built instead of the individual Plaintiffs in this action, Plaintiffs claim they are being denied even the chance to receive benefits from the charitable trust. (Opp’n 19.) Plaintiffs concede that if the Government establishes housing for disabled veterans on the WLA Campus, the individual Plaintiffs in this case might not receive that housing. (Opp’n 19.) However, if housing is built, Plaintiffs will at least be able to enter a queue for that housing, with the possibility of obtaining the housing benefit, based on whatever criteria the Government establishes for selection. The ability to apply for housing redresses Plaintiffs’ injury, even if the individual Plaintiffs are not actually granted the housing they seek.

This situation is similar to Regents of University of California v. Bakke, 438 U.S. 265, 281 n. 14, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978). In Bakke, a white, male applicant who was rejected from the University of California at Davis Medical School sued the Regents of the University of California, arguing that the affirmative action program utilized by the admissions committee for the medical school at UC Davis was unconstitutional. Id. at 272-77, 98 S.Ct. 2733. Several amici argued that the plaintiff lacked standing, as he could not prove that he would have been admitted to the medical school were it not for the affirmative action program. Id. at 281 n. 14, 98 S.Ct. 2733. The Supreme Court held that plaintiffs injury was his inability to compete on an even playing field for each spot in the medical school class. Id. Thus, even though plaintiff could not prove that he would have been admitted were it not for the affirmative action program, an order requiring the defendant to abandon its affirmative action program would remedy the injury by allowing the plaintiff to adequately compete for each spot in the medical school. Id. The Supreme Court found this sufficient to meet Article Ill’s redressability requirement. Id. So too here, if the Government constructs housing for disabled veterans as a result of this lawsuit, the individual Plaintiffs will at least be permitted to apply for the housing, and thus their injury will have been sufficiently redressed for the purposes of Article III.

2. Sovereign Immunity

The parties do not dispute the general proposition that the United States cannot be sued without consent. (Mot. 8; Opp’n 16-17; see United States v. Mitchell, 445 U.S. 585, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980)). The parties also do not dispute that 5 U.S.C. § 702 includes a waiver of sovereign immunity. (Mot. 9; Opp’n 16-17.) The only dispute before the Court is whether the waiver of sovereign immunity contained in § 702 extends to Plaintiffs’ charitable trust claims.

5 U.S.C. § 702 provides:

A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party.

5 U.S.C. § 702. It is well established that the second sentence of § 702, which Congress added in 1976, was intended to waive sovereign immunity. See Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518, 524 (9th Cir.1989) (analyzing legislative intent in depth).

The Government contends that § 702 only waives sovereign immunity where a plaintiff challenges a “final agency action” or alleges a constitutional violation. (Mot. 9.) Thus, according to the Government, the waiver of sovereign immunity contained in § 702 does not extend to Plaintiffs’ charitable trust claims, which arise under federal common law. (Mot. 9.) The Court disagrees.

The Court begins, as it must, by analyzing the text of the statute. Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992) (“[I]n interpreting a statute a court should always turn first to one, cardinal canon before all others.... [C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there.”). The text of § 702 does not contain the limitation urged by the Government. Rather, § 702 is worded broadly-under its plain language, the statute waives sovereign immunity for any action alleging injury as a result of agency action (or inaction), so long as the suit does not seek money damages. The Supreme Court has held that for the purposes of § 702, “complaints [for] declaratory and injunctive relief[ ] ... [are] certainly not actions for money damages.” Bowen v. Massachusetts, 487 U.S. 879, 893, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988). And it is undisputed that the instant lawsuit challenges the actions and inactions of the DVA, a federal agency. Thus, under the plain meaning of § 702, the Government’s waiver of sovereign immunity extends to this action.

Nevertheless, the Government argues that Gallo Cattle Company v. U.S. Department of Agriculture, 159 F.3d 1194, 1199 (9th Cir.1998), stands for the proposition that § 702 only waives sovereign immunity if the lawsuit is challenging “final agency action” under 5 U.S.C. § 704. The plaintiff in Gallo Cattle, a company involved in the production of cheese, filed a petition with the Secretary of Agriculture challenging on First Amendment grounds an assessment imposed on it by the National Dairy Promotion and Research Board. Id. at 1196. In its petition, plaintiff sought interim relief: that it be permitted to pay its assessment into an escrow account pending a decision on the merits of the petition. Id. The judicial officer acting for the Secretary of Agriculture denied the interim relief. Thereafter, plaintiff filed an action in the Eastern District of California seeking review of the judicial officer’s order denying interim relief. The court held that the waiver of sovereign immunity contained in § 702 is limited by § 704’s requirement that only final agency action is renewable under the APA. Id. at 1198.

The Gallo Cattle plaintiffs claim, however, arose under the APA, and was thus necessarily circumscribed by the limitations in § 704. To read Gallo Cattle as imposing § 704’s finality requirement on any case relying on the sovereign immunity waiver of § 702 would cause Gallo Cattle to conflict with Presbyterian Church. In Presbyterian Church, plaintiffs sued the United States, the Department of Justice, the Immigration and Naturalization Services (“INS”) and several INS officers fo