August 13, 2009 - Military veterans' advocates took their complaints of a dysfunctional mental health system to a federal appeals court Wednesday and were urged by the chief judge to negotiate improvements with the government.

"It's very difficult for the court to manage" the Department of Veterans Affairs, which oversees mental health care for veterans, Chief Judge Alex Kozinski told lawyers at the end of a hearing at the Ninth U.S. Circuit Court of Appeals in San Francisco. "It's much better if the parties manage it together. ... You can have winners on both sides."

But Justice Department attorney Daniel Scarborough told Kozinski the government was "not optimistic this is something that can be settled."

Gordon Erspamer, lawyer for Veterans for Common Sense and Veterans United for Truth, argued during the hearing that the VA subjects veterans to long delays in mental health care and has shown few signs of improvement.

"The time has come for a court to act," Erspamer said.

Kozinski said the court would issue a ruling at a future date unless the two sides settle the dispute in a week or ask for more time.

The advocacy groups sued the government in 2007, saying the VA had made mental health care virtually unavailable to thousands of discharged soldiers through perfunctory exams, delays in referrals and treatment, and a bewildering benefits system.

They cited internal e-mails, released in response to the suit, that reported 18 suicides a day among all veterans and 1,000 suicide attempts a month among the 30 percent of veterans under VA care.

The department has a backlog of 900,000 disability claims, averages nearly 4 1/2 years to decide veterans' appeals of benefit decisions and does not allow lawyers to represent veterans in their initial claims, the groups said.

Even the VA's emergency rooms often put veterans on a waiting list to be treated for mental trauma, Erspamer told the court, and sometimes "they go back and kill themselves."

After hearing the same evidence at a nonjury trial, U.S. District Judge Samuel Conti said in June 2008 that the VA was too slow to provide care but that courts lack authority to make the sweeping changes the advocates proposed.

Those changes include requiring faster decisions and improved mental health care and suicide prevention programs. The advocacy groups also wanted the VA to allow legal representation and independent review of benefit decisions.

On Wednesday, Kozinski expressed a view similar to Conti's.

"You're asking us to take over the VA and run it," Kozinski told Erspamer. "I'm skeptical where we get the authority to do that."

But Judge Stephen Reinhardt said that when the government doesn't follow the law, "it's not novel for a court to tell an agency to comply."

Click here to listen to the trial!

San Francisco Chronicle