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.