Mark Freund v. Douglas A. Collins

Opinion

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 21-4168

MARK FREUND, ET AL., PETITIONERS,

V.

DOUGLAS A. COLLINS,

SECRETARY OF VETERANS AFFAIRS, RESPONDENT.

Before ALLEN, Chief Judge, and MEREDITH and LAURER, Judges.

ORDER

On June 21, 2021, petitioners J. Roni Freund, a veteran, and Mary S. Mathewson, the thensurviving spouse of veteran Marvin Mathewson, jointly filed, through counsel, a petition for extraordinary relief seeking a writ of mandamus, asserting that VA erroneously closed their pending administrative appeals in the legacy administrative appeal system due to an automated sweeping function in VA's Veterans Appeals Control and Locator System (VACOLS). On that same date, petitioners also filed a Request for Class Certification and Class Action (RCA), seeking to represent a class of purportedly similarly situated claimants.

This matter was submitted to a panel of the Court, and the Court held oral argument. On October 20, 2022, the panel dismissed the petition, concluding that petitioners' individual claims were moot because VA had reactivated their previously closed appeals.1 The panel also denied the RCA because the Court found that the commonality and adequacy of representation requirements for class certification were not satisfied.2 Petitioners appealed the Court's decision to the United States Court of Appeals for the Federal Circuit.

On August 20, 2024, the Federal Circuit vacated this Court's decision, holding that the Court abused its discretion when we concluded that the proposed class did not meet the commonality and adequacy of representation prerequisites for class certification. 3 The Federal Circuit held that the case was not moot because the class claims met the inherently transitory claim standard. 4 On remand, the Federal Circuit directed this Court to address the superiority requirement for class certification after the Federal Circuit established that most of the other requirements for class certification were met.5 On October 11, 2024, the matter returned to us following mandate at the Federal Circuit.

1 Freund v. McDonough, 35 Vet.App. 466, 481-82 (2022) (order) (Freund I), vacated and remanded, 114 F.4th 1371 (Fed. Cir. 2024) (Freund II). 2 Freund I, 35 Vet.App. at 485-89.

3 Freund II, 114 F.4th at 1377.

4 Id. at 1379.

5 Id. at 1378.

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On December 16, 2025, following several rounds of settlement negotiations, the parties jointly moved to certify a class and appoint class counsel. Concurrently, the parties jointly moved to terminate the case with an attached proposed settlement agreement contingent on the Court granting class certification. In a nutshell, the proposed settlement agreement, which we do not purport to describe here, provides a detailed process and timeline for auditing VA's files to locate appeals that were wrongly closed in VACOLS, as well as procedures for reactivating those appeals.6

On March 18, 2026, the Court certified a class defined as "all claimants with an appeal file in . . . [ ]VACOLS[ ] that has been closed in the period between December 12, 1990, and February 6, 2025, due to the lack of a timely filed Substantive Appeal and which appeal remains closed" and appointed class counsel.7 The Court also ordered the parties to provide notice of the proposed settlement agreement to class members.8

On May 21, 2026, the parties informed the Court that class notice was effectuated on April 15, 2026, and the parties complied with the 30-day period for written objections, according to the proposed settlement agreement and the Court's March 2026 order.

On May 21, 2026, and June 15, 2026, the parties notified the Court of the written responses they received during the 30-day class notice period. As a result of the notice, the parties received four written responses.9 Three of the four communications consisted of individuals seeking to opt out of the class.10 Those individuals did not provide any suggested revision to the terms of the proposed settlement agreement, nor did they purport to object to any settlement terms. Nevertheless, we will address those opt-out-related responses and then consider the single, true objection.

Turning first to the opt-out requests, we note that the settlement agreement contains no provision for opting out of the class. This means the proposed agreement operates as a binding resolution for all class members with no right to opt out. Although the proposed agreement does not include an opt-out right, we find that class members' mandatory participation in this settlement causes no harm or disadvantages to any class member. 11 This is so because the settlement agreement functions exclusively to provide relief for individuals affected by VA's VACOLS error. The parties structured the settlement to remedy VA's error through inclusion of all class members to reactivate any wrongly closed appeals. And, theoretically, if a class member whose wrongly

6 The Proposed Settlement Agreement is attached to the December 16, 2025, Joint Motion to Approve the Proposed Settlement and Terminate the Case. 7 Freund v. Collins, 39 Vet.App. 127, 142 (2026) (per curiam order) (Freund III); see U.S. VET. APP. R. 23(c), (f)(1).

8 Freund III, 39 Vet.App. at 142; see U.S. VET. APP. R. 23(e)(1), (4).

9 May 21, 2026, Joint Response at 3-4 (Exhibit (Ex.) 3, 4, 5, 6, 7); June 15, 2026, Joint Response at 2 (Ex. 3); see U.S. VET. APP. R. 23(e)(4) (stating that "[a]ny class member may object to the proposal if it requires Court approval under . . . subdivision (e)"). 10 May 21, 2026, Joint Response (Ex. 4, 5, 6, 7); June 15, 2026, Joint Response (Ex. 3).

11 See Eubanks v. Billington, 110 F.3d 87, 97-98 (D.C. Cir. 1997) (discussing opt-out rights in the context of ensuring "basic fairness"); Thomas v. Albright, 139 F.3d 227, 235-36 (D.C. Cir. 1998) (applying Eubanks and concluding that the district court abused its discretion in allowing opt-outs from a settlement class).

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closed appeal is reactivated through VA's proposed auditing or individualized notice processes does not wish to pursue the appeal, that class member can still choose to voluntarily withdraw or abandon their appeal at the Agency. There's simply no risk of harm to class members in this proposed settlement; the settlement can only benefit individuals impacted by VA's error. So, even if we considered the opt-out-related communications to be objections, we would overrule them. Moreover, the three opt-out requests appear to involve active claims—that is, not claims that have been wrongly closed via the VACOLS sweeping function. That means that the claimants who submitted the opt-out requests are not part of the class, and the settlement agreement's terms do not apply to them, at least with respect to the claims they identify in their submissions.

Next, we consider the only true objection to the settlement. The objection, on its face, appears to be an objection to the adequacy and fairness of the proposed settlement agreement because the objector faulted the settlement for failing to recognize the "justice delayed" through VA's VACOLS error. 12 The objector proposed amending the agreement to include terms that would allocate one-third of the docket of the Board of Veterans' Appeals (Board) to the class and adjust backpay for inflation and interest.13 Concerning the objection about an allocation of the Board's docket, while the parties might have negotiated for such a term when resolving this matter, we conclude that the inclusion of the term the objector suggests is not necessary to ensure the fairness, reasonability, or adequacy of the settlement agreement. Class members who have their appeals reactivated will assume a place on the Board's docket that reflects the date of their Substantive Appeal. Thereafter, the Board's normal rules for processing appeals will apply. The parties reasonably balanced the needs of the Freund class with the other claimants with appeals pending before the Board. With respect to the part of the objection concerning adjustment for inflation and the provision of an interest rate, such a provision would likely have been unlawful.14 Given all this, we overrule this objection in full.

In sum, we have carefully considered the settlement agreement's terms, the parties' written submissions, and oral arguments, as well as the communications received following the notice of the proposed settlement. The settlement agreement addresses a systemic problem in a comprehensive way while treating the class members equitably relative to each other. Moreover, we can see no situation in which being a member of the class could harm anyone. So we conclude that the terms of the settlement are fair, reasonable, and adequate.

Upon consideration of the foregoing, it is

ORDERED that the parties' December 16, 2025, joint motion to terminate the case is granted, and the proposed settlement agreement is APPROVED.

DATED: August 19, 2026 PER CURIAM.

12 See May 21, 2026, Joint Response (Ex. 3).

13 Id.

14 See Libr. of Cong. v. Shaw, 478 U.S. 310, 314-15 (1986).

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Copies to:

John D. Niles, Esq.

VA General Counsel