Judge: "Congress and the administration should resolve the problem, but if they don't, you're left unfortunately with the court to do it."

NOTE from Larry Scott, VA Watchdog dot Org ... It appears we have a divided Court on this issue.  It will be interesting to see if the VA goes to mediation or settles ... but I doubt that will happen.  For background on this appeal and a backlink to a complete history of this suit, click here.  We have two news items.

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SF: COURT HEARS VETERANS APPEAL IN MENTAL HEALTH CARE CASE

SAN FRANCISCO (BCN)

A federal appeals court judge in San Francisco today urged both sides to try to reach a settlement in a massive lawsuit challenging mental health care for veterans returning from Iraq and Afghanistan.

Chief 9th U.S. Circuit Court of Appeals Judge Alex Kozinski told lawyers for the government and two veterans' groups, "What I'm struck by in this case is that everybody here is concerned with helping veterans."

Kozinski spoke after he and two other judges heard nearly an hour of arguments on a lawsuit filed by Veterans for Common Sense and Veterans United for Truth against the U.S. Department of Veterans Affairs, known as the VA.

Kozinski said the panel will delay taking the case under consideration for one week in order to give the attorneys a chance to seek mediation or a settlement.

The two veterans' groups claim that lengthy delays by the VA in providing care for vets suffering combat stress, including those who are suicidal, violate the Constitution and a federal law.

They are appealing a ruling in which U.S. District Judge Samuel Conti of San Francisco said last year that the delays are troubling, but said the solutions "are beyond the power of this court" and lie in the hands of Congress and the VA.

Gordon Erspamer, a lawyer for the veterans, argued that the delays are "unconscionable." He told the panel that appeals within the VA system take an average of 4.4 years and that more than 85,000 vets are on waiting lists for mental health care.

Kozinski said he questioned the power of courts to tell federal agencies how to do their jobs.

"I'm just skeptical of where we get the authority to do that," the judge said. "How do we go about telling an agency 'you've got to work faster?'"

But another judge on the panel, Stephen Reinhardt, said courts sometimes have to step in when government agencies fail in their duties.

Reinhardt, who recently served on a different panel that ordered a reduction in the California prison population, said that in the veterans' case, "Congress and the administration should resolve the problem, but if they don't, you're left unfortunately with the court to do it."

He said, "You shouldn't have to do it, but it's a last resort."

The same three-judge panel also heard an appeal today in which Philip Morris USA Inc., the nation's largest tobacco company, is challenging the city of San Francisco's ban on tobacco sales in pharmacies.

The company claims the ban violates its constitutional free speech right by curtailing its drugstore advertising and displays. It is appealing a ruling in which U.S. District Judge Claudia Wilken of Oakland upheld the city law.

Philip Morris attorney Daniel Collins argued that while the city law doesn't directly prohibit cigarette ads in drugstores, "it has the effect of eliminating a method of advertising."

Wilken ruled last year that the law regulates conduct - the sale of tobacco - and not advertising.

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Ninth Circuit on Veterans Issues: Can't We All Just Get Along?

The Ninth Circuit U.S. Court of Appeals on Wednesday urged the U.S. Department of Veterans Affairs and two veterans groups to take a week or longer to see whether they can find common ground in an effort to improve medical care and the claims process for veterans.

“Go get a sandwich together,” Chief Judge Alex Kozinski told the attorneys in a hearing. “Pursue the possibility of working something out.” He recommended the court’s mediation service, saying that a settlement would be “a tribute to our compassion” and care for veterans.

Surely the lawyers could sit down at the table, he said, “even if it’s only [over] a bottle of water.”

Charles Scarborough, appellate attorney with the U.S. Department of Justice, didn’t sound confident about a settlement.

“I’m not optimistic that this is something that can be settled in a non-judicial manner,” he told the judges.

Veterans for Common Sense and Veterans United for Truth sued in July 2007, seeking declaratory and injunctive relief to demand reform of the agency.

Gordon Erspamer of Morrison & Foerster, representing the veterans groups with co-counsel Disability Rights Advocates, referred Wednesday to the U.S. District Court’s finding of “unreasonable delay” in medical care for veterans under the Administrative Procedure Act and argued that the court was wrong not to order the Department of Veterans of Affairs to provide timely care.

He cited the 85,000 veterans on waiting lists for mental health care, and the average of 4.4 years it takes a veteran to adjudicate a claim through the agency.

Scarborough said the Department of Veterans Affairs had committed more resources and started pilot programs to shorten delays. He said it takes time for new funds and hires to catch up with the need for services. He argued there weren’t unreasonable delays in the system.

Kozinski said he was skeptical about the court’s authority to take over the VA and asked why the problem of timely care for veterans isn’t a political question.

Erspamer argued that Congress has enacted laws to address the problem, but that nothing has changed.

“What we’re dealing with is whether what is happening now is in compliance with the law,” Judge Stephen Reinhardt said. “If the VA is not complying with the law, I don’t know what the great difficulty is in a court saying you must comply with the law.”

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TOPICS: veterans, veterans' benefits, VA, Department of Veterans' Affairs, lawsuit, San Francisco