Freund, et al

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.
O R D E R
This case has been pending before one federal court or another for almost 5 years. We may
be nearing the end of that journey. Pending before the Court are the parties' joint motion to certify
a class and appoint class counsel, as well as a joint motion to approve a proposed settlement and
terminate the case. As we explain, we will grant the joint motion to certify a class and appoint
class counsel. We will hold the motion to approve the proposed settlement and terminate this case
in abeyance pending the provision of notice of the settlement to the class and a fairness hearing
under Rule 23(e)(2) of the Court's Rules of Practice and Procedure (Rules).
I. BACKGROUND
On June 21, 2021, J. Roni Freund, a veteran, and Mary S. Mathewson, the surviving spouse
of veteran Marvin Mathewson, jointly filed, through counsel, a petition for extraordinary relief in
the form of a writ of mandamus.1 In their petition, petitioners argued that VA erroneously closed
their pending administrative appeals in the legacy administrative appeal system due to an
automated sweeping function in the Veterans Appeals Control and Locator System (VACOLS).
On the same date they filed the petition, petitioners also filed a Request for Class Certification and
Class Action (RCA), seeking to represent a class of purportedly similarly situated claimants. In
the RCA, petitioners defined the class as:
[a]ll claimants with a timely perfected legacy appeal: (1) that is an original appeal,
(2) that the Secretary has closed, (3) that remains closed, (4) that appears in
VACOLS, (5) for which a copy of the [S]ubstantive [A]ppeal appears in [the
Veterans Benefits Management System (VBMS)], and (6) for which VA has not
issued a rating decision regarding the [S]ubstantive [A]ppeal's timeliness.[2]
1 On July 7, 2022, Ms. Freund passed away. Her brother, Mark Freund, filed a motion to substitute. On October 12,
2022, the Court granted Mr. Freund's motion to be substituted as petitioner. On February 19, 2025, Mrs. Mathewson
passed away. Her son, Mark Mathewson, filed a motion to substitute. On June 6, 2025, the Court granted Mr.
Mathewson's motion to be substituted as a petitioner.
2 RCA at 8.
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On June 29, 2021, this matter was submitted to a panel of the Court. On October 20, 2022,
after the parties filed supplemental memoranda and the Court held oral argument, we denied
petitioners' RCA and dismissed the petition.3 As to the petition, we concluded, in part, that
petitioners' individual claims were moot because VA had reactivated their previously closed
appeals.4 As for the RCA, we denied class certification after determining that the commonality
and adequacy of representation prerequisites for class certification were not satisfied.5 Petitioners
appealed our decision to the United States Court of Appeals for the Federal Circuit (Federal
Circuit).
On August 20, 2024, the Federal Circuit vacated this Court's decision and remanded the
matter "to further consider [the] class certification ruling, and, if a class is certified, to determine
the appropriate relief."6 The Federal Circuit held that this Court abused its discretion when we
concluded that the proposed class did not meet the commonality and adequacy of representation
requirements.7 The Federal Circuit held that "the case [was] not moot as to the class claims because
it satisfies the inherently transitory claim standard." 8 The Federal Circuit also held that the
proposed class definition provided objective criteria for class membership and concluded that the
ascertainability requirement for class certification was "clearly met here."9 The Federal Circuit
instructed this Court particularly to address the superiority requirement for class certification,
reasoning that "administrative feasibility may bear on whether class resolution is superior to
individual resolution."10 Following mandate at the Federal Circuit, the matter returned to us on
October 11, 2024.
On November 4, 2024, the Court ordered the parties to provide supplemental memoranda
addressing the Federal Circuit's decision.11 Additionally, we asked the parties to address whether
the Court should modify the superiority factors in Skaar v. Wilkie to address the issue of superiority
in the context of a petition rather than an appeal.12 Following the November 2024 order, the parties
filed—and the panel granted—numerous motions to stay proceedings while the parties attempted
to negotiate a joint resolution.
After several rounds of negotiations, the parties reached a mutually agreeable resolution.
On December 16, 2025, the parties filed the joint motions before us today. In their joint motion to
3 Freund v. McDonough, 35 Vet.App. 466, 474 (2022) (order) (Freund I), vacated and remanded, 114 F.4th 1371
(Fed. Cir. 2024) (Freund II).
4 Freund I, 35 Vet.App. at 482-83.
5 Id. at 485-89.
6 Freund II, 114 F.4th at 1374.
7 Id. at 1377.
8 Id. at 1374.
9 Id. at 1378.
10 Id.
11 Nov. 4, 2024, Court Order at 3-4.
12 Id. at 4; Skaar v. Wilkie, 32 Vet.App. 156, 197 (2019) (en banc order), vacated and remanded on other grounds sub
nom., Skaar v. McDonough, 48 F.4th 1323 (Fed. Cir. 2022).
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certify, the parties ask the Court to "certify a class consisting of all claimants with an appeal file
in [VACOLS] that has been closed and remains closed."13 They also ask that we appoint Mr. John
D. Niles to serve as class counsel.14 In terms of the proposed settlement,15 the parties agree that
VA will conduct a case-by-case review to identify flagged appeals that were improperly closed
between December 12, 1990, and February 6, 2025, despite having potentially timely appeals.16
Once the audit is completed, VA proposes to reactivate all appeals that warrant reactivation from
the review, provide notice to affected class members, and process the reactivated appeals
expeditiously. 17 The parties also agree to provide class members whose closed Substantive
Appeals were not captured by the audit the opportunity to challenge the closure of their appeals
directly with VA.18
We proceed as follows. We first address whether class certification is appropriate. Taking
into account that we are considering class certification at the settlement stage, and according
significant weight to the Federal Circuit's decision in this case, we conclude that class certification
is appropriate. We then grant the parties' request that we appoint Mr. John D. Niles as class counsel.
Finally, we turn to the proposed settlement. We describe the notice we will direct be provided to
the class concerning the proposed settlement and explain that we will hold the joint motion to
terminate in abeyance pending a fairness hearing to be held following the provision of notice.
II. CLASS CERTIFICATION
We begin by reviewing the requirements for class certification. In order to certify a class,
we must ensure that the requirements of Rule 23(a) of the Court's Rules are met. 19 The
prerequisites under Rule 23(a) are:
(1) the class is so numerous that consolidating individual actions in the Court is
impracticable;
(2) there are questions of law or fact common to the class;
(3) the legal issue or issues being raised by the representative parties on the merits
are typical of the legal issues that could be raised by the class;
13 Joint Motion to Certify and Appoint Class Counsel (Joint Motion to Certify) at 1. We note that the proffered class
definition in the joint motion to certify is a broader class than what was previously described in the class definition in
the RCA.
14 Id. at 2.
15 While we will provide a summary of the proposed settlement, we do not purport to describe all of its provisions.
See Joint Motion to Approve the Proposed Settlement and Terminate the Case (Joint Motion to Approve the Proposed
Settlement) at 5-18 (Proposed Settlement Agreement ¶¶ 1-17).
16 Proposed Settlement Agreement ¶ 2.
17 Id. at ¶¶ 4-5.
18 Id. at ¶¶ 3-4.
19 U.S. VET. APP. R. 23(a)(1)-(5); see FED. R. CIV. P. (FRCP) 23(a)(1)-(4), (b)(2).
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(4) the representative parties will fairly and adequately protect the interests of the
class; and
(5) the Secretary or one or more official(s), agent(s), or employee(s) of the
Department of Veterans Affairs has acted or failed to act on grounds that apply
generally to the class, so that final injunctive or other appropriate relief is
appropriate respecting the class as a whole.[20]
In addition to these Rule 23(a) prerequisites, the Court must also consider whether a class
action is superior to issuing a precedential decision. 21 And finally, the Federal Circuit has
recognized that while it is not a requirement under the Federal Rules of Civil Procedure or our
Rules, ascertainability—that is, the ability to identify who is in the class—is an implied
requirement for class certification.22 The key to satisfying the implied ascertainability requirement
is whether the class definition is described using objective criteria.23
Let's start with the parties' proposed class: "all claimants with an appeal file in [VACOLS]
that has been closed and remains closed."24 This class, which is set forth in the joint motion to
certify, does not contain a time limit or any other constraint on its face. However, we read the
definition in concert with the parties' proposed settlement agreement. In paragraph 2 of the
proposed settlement agreement, the parties make clear that the class at issue includes 28,258
appeals that had been automatically closed in VACOLS "between December 12, 1990, and
February 6, 2025, for lack of a timely filed [S]ubstantive [A]ppeal."25 So, we will proceed to
analyze this proposed class based on the joint motion to certify along with the proposed settlement
agreement: "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."26
Before proceeding through the class certification requirements, we pause to note three
important factors that guide our analysis. First, we are considering class certification in the context
of a proposed settlement. As we will discuss below, while the requirements for class certification
remain constant, whether a court is considering certification in the context of a settlement—as
opposed to a contested adjudication—matters in terms of how the criteria are employed.27 So we
caution litigants that our analysis must be seen through the lens of a settlement class.
20 U.S. VET. APP. R. 23(a)(1)-(5).
21 Freund II, 114 F.4th at 1376; Beaudette v. McDonough, 34 Vet.App. 95, 107 (2021) (order), aff'd on other grounds,
93 F.4th 1361 (Fed. Cir. 2024); see U.S. VET. APP. R. 22(a)(3).
22 Freund II, 114 F.4th at 1377-78 (citing Cherry v. Dometic Corp., 986 F.3d 1296, 1302-03 (11th Cir. 2021)).
23 Id. at 1378.
24 Joint Motion to Certify at 1.
25 Proposed Settlement Agreement ¶ 2.
26 The Court has previously altered a class definition as part of the certification analysis. See Godsey v. Wilkie,
31 Vet.App. 207, 221-22 (2019) (per curiam order).
27 See In re Hyundai & Kia Fuel Econ. Litig., 926 F.3d 539, 556-57 (9th Cir. 2019) (en banc) (Hyundai II).
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Our second guide is that we are not writing on a blank slate. As we have noted, and as we
will discuss further, the Federal Circuit has weighed in—authoritatively—on certain certification-
related questions in this case. As this Court has noted in another context, that means that our
analysis here is affected both by the Federal Circuit's explicit holdings, as well as by "the spirit"
of the Federal Circuit's opinion.28
Finally, as the recitation of the facts and procedural history of this matter makes clear, this
is an unusual case in many respects. The uniqueness of the problem at the heart of this matter and
the context in which we are considering the matters before us—for example, a settlement class in
the shadow of a Federal Circuit decision—make our analysis unlikely to be useful in assessing
classes in other contexts. With this caution in place, we turn to class certification in earnest.
A. Numerosity
For the numerosity prong of the class certification test to be satisfied, the class must be "so
numerous that consolidating individual actions in the Court is impracticable."29 Generally, courts
find that numerosity is met "if the class comprises 40 or more members."30 Over the course of the
proceedings in this case, there have been varying estimates of the size of the potential class.
However, the key to our numerosity analysis today is the parties' settlement agreement. They state
that there are
28,258 appeal files that VA flagged by an automated search on
February 7, 2025, as potentially having a timely filed [S]ubstantive
[A]ppeal, coded as such in [VBMS], despite being closed by
[VACOLS] automatically between December 12, 1990, and
February 6, 2025, for lack of a timely filed [S]ubstantive
[A]ppeal.[31]
Given the parties' agreement that there are 28,258 appeals that come within the class
definition as we have described by synthesizing the joint motion to certify and the proposed
settlement agreement, we have no difficulty concluding that the numerosity requirement is
satisfied here. We now move onto the commonality requirement.
B. Commonality
Class certification also requires that "there are questions of law or fact common to the
class." 32 The Supreme Court has instructed that "[c]ommonality requires the plaintiff to
28 Atilano v. McDonough, 35 Vet.App. 490, 493 (2022) (per curiam).
29 U.S. VET. APP. R. 23(a)(1).
30 Celano v. Marriott Int'l, Inc., 242 F.R.D. 544, 549 (N.D. Cal. 2007).
31 Proposed Settlement Agreement ¶ 2.
32 U.S. VET. APP. R. 23(a)(2).
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demonstrate that class members 'have suffered the same injury.'"33 To meet this prerequisite, a
"'common contention'" among class members must be "'of such a nature that it is capable of
classwide resolution—which means that determination of its truth or falsity will resolve an issue
that is central to the validity of each one of the claims in one stroke.'"34
In the RCA, petitioners argued that VA erroneously closed timely perfected legacy appeals
and that the Secretary unlawfully withheld agency action by keeping those appeals closed.35 In its
review of our decision in Freund I, the Federal Circuit addressed commonality directly and
determined that the commonality requirement was met, at least as to the class definition in play at
that time.36 The Federal Circuit found that "there is a common answer to a common question here"
because "[t]he proposed class members have all suffered the same injury—the Secretary closed
their appeals in VACOLS despite their timely filed Substantive Appeals."37 The Federal Circuit
noted that if petitioners were to prevail in obtaining class certification, then "VA would be ordered
to develop a process to identify the class members and reactivate their appeals."38
Of course, the proposed class here today is broader than the one the Federal Circuit
considered in Freund II. But considering the "spirit" of the Federal Circuit's decision,39 we see no
meaningful difference between the proposed class here and the one for which the Federal Circuit
found the commonality requirement was satisfied. The proposed class, as we have defined it,
includes all appeals closed between December 12, 1990, and February 6, 2025, because VA
determined there was no timely Substantive Appeal.40 That common feature binds the class and
triggers VA's obligation under the proposed settlement agreement to conduct a case-by-case audit
to identify appeals that were inappropriately closed.41 To be sure, not everyone included in the
proposed class will be injured in the sense that their appeal was wrongfully closed. But every
member of the class is injured in the sense that their appeal was closed under the cloud of error but
in a way that makes it difficult to determine whether there was, in fact, an error in VA's closing of
the appeal. The proposed settlement agreement addresses that injury for every member of the class
in a common way. VA will conduct a case-by-case review of the appeal files for each member of
the proposed class to determine whether a class member, in fact, suffers from the narrower injury
of actually having a wrongly closed appeal.42
33 Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349-50 (2011) (quoting General Tel. Co. of Sw. v. Falcon, 457 U.S.
147, 157 (1982)).
34 Freund I, 35 Vet.App. at 488 (quoting Wal-Mart, 564 U.S. at 350); see Monk v. Wilkie, 978 F.3d 1273, 1277 (Fed.
Cir. 2020).
35 Freund I, 35 Vet.App. at 474.
36 Freund II, 114 F.4th at 1377.
37 Id.
38 Id.
39 Atilano, 35 Vet.App. at 493.
40 Proposed Settlement Agreement ¶ 2.
41 Id.
42 Id.
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We reiterate our earlier caution about extrapolating our analysis here into other class
certification analyses, particularly those that are not addressing a proposed settlement class where
the Federal Circuit has already weighed in. In sum, we conclude, in line with the Federal Circuit's
decision in Freund II and the unique facts of the case before us, that the commonality requirement
is satisfied.43
C. Typicality
The next prerequisite for class certification, typicality, overlaps with the commonality
requirement.44 Typicality requires that "the legal issue or issues being raised by the representative
parties on the merits are typical of the legal issues that could be raised by the class."45 It "focuses
on whether 'in pursuing his own claims, the named plaintiff will also advance the interests of the
class members.'"46 "'The test of typicality 'is whether other members have the same or similar
injury, whether the action is based on conduct which is not unique to the named plaintiffs, and
whether other class members have been injured by the same conduct.'"47 The inquiry centers on
whether the representatives' claims stem from the same course of conduct that impacts the class
and are rooted in the same legal theory.48
We conclude that typicality is satisfied here in essentially the same way as the commonality
prerequisite. Petitioners and the proposed class members were affected by the same conduct by
VA—the closure of an appeal in VACOLS because of an erroneous determination that there was
no timely Substantive Appeal and the uncertainty about whether their appeals had been wrongly
closed. Because the Federal Circuit has determined that the related prerequisite of commonality
has been satisfied and because petitioners' claims share the same essential characteristics of the
proposed class, we hold that petitioners' claims are typical of the class.
D. Adequacy of Representation
Next, class certification requires that "the representative parties will fairly and adequately
protect the interests of the class."49 This adequacy of representation is "'twofold: the proposed class
representative must have an interest in vigorously pursuing the claims of the class, and must have
no interests antagonistic to the interests of other class members.'"50 "The adequacy inquiry . . .
43 We note that because the class is broad in this case, the Court will engage in a heightened analysis at the settlement
approval stage to ensure that the proposed settlement is "fair, reasonable, and adequate." U.S. VET. APP. R. 23(e)(2).
In short, we must ensure that the broad nature of the class does not cause harm to any members.
44 Skaar, 32 Vet.App. at 192.
45 U.S. VET. APP. R. 23(a)(3).
46 Skaar, 32 Vet.App. at 192 (quoting In re Am. Med. Sys., 75 F.3d 1069, 1082 (6th Cir. 1996)).
47 Id. at 193 (quoting Wolin v. Jaguar Land Rover N.A., LLC, 617 F.3d 1168, 1175 (9th Cir. 2010)).
48 In re Drexel Burnham Lambert Grp., Inc., 960 F.2d 285, 291 (2d Cir. 1992); De La Fuente v. Stokely-Van Camp,
Inc., 713 F.2d 225, 232 (7th Cir. 1983).
49 U.S. VET. APP. R. 23(a)(4).
50 Skaar, 32 Vet.App. at 193 (quoting In re Literary Works in Elec. Databases Copyright Litig., 654 F.3d 242, 249
(2d Cir. 2011)).
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serves to uncover conflicts of interest between named parties and the class they seek to
represent."51
The Federal Circuit determined that "the named petitioners and class members similarly
situated satisfied" the adequacy of representation requirement "because in each case at the time of
the filing of the complaint they had received no communication from the VA concerning the
closure of their appeals."52 The Federal Circuit noted that this lack of communication from VA
with respect to the closure of appeals is "all that is required for representation" since "petitioners
suffered the same injury as the other proposed class members."53 The Federal Circuit also opined
that there is no suggestion of a conceivable conflict between any of the named petitioners and the
class, finding that petitioners satisfy the adequacy of representation requirement.54 We are bound
by the Federal Circuit's holding concerning the adequacy of representation, and we can't see how
the revised class definition before us changes that analysis. So, we conclude that this requirement
for class certification is satisfied.
E. General Applicability of Secretary's Conduct
The fifth prerequisite for class certification under Rule 23(a) requires that "the Secretary
or one or more official(s), agent(s), or employee(s) of [VA] has acted or failed to act on grounds
that apply generally to the class."55 Under Rule 23(a)(5), the primary question is "whether the same
injunctive or other relief is appropriate for both the representative and the members of the proposed
class."56 Petitioners claim that the Secretary deprived them and the class members of action on
their timely filed Substantive Appeals "because the Secretary ha[d] closed them erroneously."57
And so petitioners argue that they seek the same injunctive relief as class members: for VA to
reinstate their erroneously closed appeals. Moreover, in the proposed settlement agreement, the
parties identify conduct that is universal to the class in terms of specifying VA's obligation to
conduct a case-by-case file review.58 Every member of the class we are considering will be entitled
to the case-by-case review of their closed appeal that the proposed settlement agreement
describes.59 So, we conclude that the same-relief requirement under Rule 23(a)(5) is met.
51 Amchem Products, Inc. v. Windsor, 521 U.S. 591, 625 (1997); see Pickett v. Iowa Beef Processors, 209 F.3d 1276,
1280 (11th Cir. 2000).
52 Freund II, 114 F.4th at 1377.
53 Id.
54 Id.
55 U.S. VET. APP. R. 23(a)(5).
56 Furtick v. McDonough, 34 Vet.App. 293, 298 (2021) (per curiam order) (comparing U.S. VET. APP. R. 23(a)(5) with
FRCP (23)(b)(2)).
57 RCA at 21.
58 Proposed Settlement Agreement ¶ 2.
59 Id.
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F. Ascertainability
Next, although not expressly listed as a requirement under Rule 23, the Federal Circuit
joined the majority of federal courts by requiring that class members be readily identifiable or
"ascertainable."60 Jurisdictions generally administer two types of tests to assess ascertainability.
Most courts utilize a traditional ascertainability test that focuses on whether the existence of class
members can be identified by reference to objective criteria in the class definition.61 Other courts
go one step further and apply a more stringent administrative feasibility requirement, necessitating
that "'identifying class members is a manageable process that does not require much, if any,
individual factual inquiry.'"62 The Federal Circuit adopted the majority approach that focuses on
the objective nature of the class definition.63 The court then held that "[t]he traditional test for
ascertainability is clearly met here because the class is defined by objective criteria—whether a
claimant timely filed a Substantive Appeal yet had their appeal closed in VACOLS."64 The Federal
Circuit explained that the class was defined by objective, verifiable criteria "even if it is not
presently known which claimants will ultimately qualify for the class."65 The logic applies to the
proposed class here. There is nothing subjective in the class definition. So we conclude that the
implicit ascertainability requirement is satisfied here.
We note that the Federal Circuit rejected the application of the administrative feasibility
test for ascertainability, stating that "administrative feasibility may bear on whether class
resolution is superior to individual resolution" but that this Court had "not yet ruled on the
superiority of class resolution."66 We will return to this administrative feasibility issue in the next
section of this order dealing with the superiority question.
G. Superiority
Finally, when considering a request to certify a class, this Court assesses whether class-
wide relief is superior to the resolution of a matter through a precedential decision standing alone.
Under Rule 22(a)(3), the superiority requirement is met when "a decision granting relief on a class
action basis would serve the interests of justice to a greater degree than would a precedential
decision granting relief on a non-class action basis."67 In Skaar, this Court outlined a balancing
60 Freund II, 114 F.4th at 1378; see Marcus v. BMW of N. Am. LLC, 687 F.3d 583, 595 (3d Cir. 2012).
61 Wasser v. All Market, Inc., 329 F.R.D. 464, 472-73 (S.D. Fla. 2018) (citing Karhu v. Vital Pharms., Inc., 621 F.
App'x 945, 952 (11th Cir. 2015)).
62 Carrera v. Bayer Corp., 727 F.3d 300, 307-08 (3d Cir. 2013) (quoting William B. Rubenstein, 1 NEWBERG &
RUBENSTEIN ON CLASS ACTIONS, § 3.3 (5th ed. 2011)); see Bakalar v. Vavra, 237 F.R.D. 59, 64 (S.D. N.Y. 2006).
63 Freund II, 114 F.4th at 1378.
64 Id.
65 Id.
66 Id.
67 U.S. VET. APP. R. 22(a)(3).
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test involving a nonexhaustive set of factors for determining, on a case-by-case basis, whether the
presumption against aggregation action is rebutted.68 The Skaar factors are
whether (i) the challenge is collateral to a claim for benefits; (ii) litigation of the
challenge involves compiling a complex factual record; (iii) the appellate record is
sufficiently developed to permit judicial review of the challenged conduct; and (iv)
the putative class has alleged sufficient facts suggesting a need for remedial
enforcement.[69]
Before the parties reached their proposed settlement, the Secretary conceded that
"[p]etitioners have demonstrated that 'the challenge is collateral to a claim for benefits' and 'the
appellate record is sufficiently developed to permit judicial review of the challenged conduct.'"70
We agree with the Secretary. As to the initial factor, the class claim here is collateral to the class's
individual claims for benefits because VA failed to resume action on the erroneously closed
appeals, thereby preventing VA from rendering a decision for those appeals. The erroneous closure
issue bears no relationship to the underlying merits of the various administrative appeals. And in
terms of the third superiority factor, whether the record is sufficiently complete for adjudication,
we agree with petitioners that the appendices to the RCA contain all the information and facts
necessary to demonstrate that the Secretary inappropriately closed timely filed appeals and that the
appeals, at the time the RCA was filed, remained closed.71
As to the second Skaar factor, whether litigation of the challenge involves compiling a
complex factual record, the Secretary argued at one point that petitioners "concede that compiling
a complex factual record in this case is not needed."72 We need not resolve whether, in a case in
which we were considering class certification for adjudication purposes, petitioners' claims would
require the development of a complex factual record. We are dealing with a settlement class. The
parties have agreed upon the nature of the record that is required to address the claims at issue.
Essentially, this Skaar factor drops out of the equation in the context of a settlement class.
Finally, the fourth and last Skaar factor for superiority requires us to consider whether the
putative class has alleged sufficient facts suggesting a need for remedial enforcement. Once again,
the fact that we are dealing with a settlement class is significant. The proposed settlement
agreement the parties negotiated establishes a plan for VA to engage in a case-by-case review of
28,258 appeal files and take specific action should it be determined that an appeal was
68 Skaar, 32 Vet.App. at 197.
69 Id. As we noted earlier, in the November 2024 and April 2025 Court orders, we asked the parties to address the
superiority question. We also asked them to address whether we should modify the Skaar factors expressly to address
petitions as opposed to appeals. Nov. 4, 2024, Court Order at 4; Apr. 24, 2025, Court Order at 1. The parties spent the
bulk of their efforts on the Skaar factors themselves. Given that we are dealing with a settlement class here, we leave
for another day the question of whether we should formally modify the Skaar factors to address petitions.
70 Secretary's Aug. 11, 2025, Response to the Apr. 24, 2025, Court Order at 4 (quoting Skaar, 32 Vet.App. at 197).
71 RCA at 25.
72 Secretary's Oct. 12, 2021, Response to the RCA at 8.
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inappropriately closed.73 This proposal basically recognizes the equivalent of the type of remedial
enforcement that the fourth Skaar factor contemplates.
In addition to the Skaar factors, the Secretary at one point asked the Court to consider the
difficulties of manageability in terms of proceeding on a class-wide basis. 74 Of course, the
Secretary does not press the manageability concern now given the parties' proposed settlement.
And that makes perfect sense because manageability concerns that might be paramount in the
context of the certification of a contested class for adjudication purposes simply aren't present in
the context of a class to be certified for settlement purposes.
Particularly instructive on the issue of class manageability is Hyundai II.75 There, the Ninth
Circuit sitting en banc affirmed the district court's certification of a nationwide settlement class of
a multidistrict litigation against Hyundai Motor America and Kia Motors America.76 The class
members consisted of purchasers and lessees of certain models of Hyundai and Kia cars who relied
on alleged misrepresentations concerning the vehicles' fuel economy disclosures.77 The parties
reached a settlement agreement.78 The district court approved the class settlement, but a split panel
at the Ninth Circuit "vacated the class certification decision and remanded, holding that by failing
to analyze the variations in state law, the district court abused its discretion in certifying the
settlement class."79
Upon rehearing the case, the Ninth Circuit en banc court affirmed the district court's
certification of the settlement class.80 The Ninth Circuit repeatedly noted that the application of
class certification criteria differs between litigation classes and settlement classes. The Ninth
Circuit emphasized that when determining whether to certify a class, a district court need not be
concerned with class manageability when dealing with a settlement class.81 The Ninth Circuit
stressed that district courts should inquire whether a litigation class would present management
problems, but such management issues are "not a concern in certifying a settlement class where,
by definition, there will be no trial."82
73 Proposed Settlement Agreement ¶¶ 2, 4.
74 Secretary's Aug. 11, 2025, Response to the Apr. 24, 2025, Court Order at 4-5.
75 926 F.3d 539.
76 Id. at 552-53.
77 Id. at 553.
78 Id. at 554.
79 Id. at 555 (citing In re Hyundai & Kia Fuel Econ. Litig., 881 F.3d 679 (9th Cir. 2018) (Hyundai I)).
80 Hyundai II, 926 F.3d at 552.
81 Id. at 556-57, 558 (stating "[a]s noted above, in deciding whether to certify a settlement-only class, 'a district court
need not inquire whether the case, if tried, would present intractable management problems'"), 563 (noting "[i]n
settlement cases, such as the one at hand, the district court need not consider trial manageability issues (both citing
Amchem, 521 U.S. at 620)).
82 Id. at 556-57 (emphasis added).
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Here, we need not consider the manageability issues that may otherwise preclude class
certification because the parties have agreed to a settlement. In other words, manageability
concerns are not implicated in the context of Freund because the case is being settled.
Considering the Skaar factors in the context of a settlement class, we determine that a class
action is superior to a precedential decision in resolving this matter.
H. Class Certification Conclusion
We conclude that certification of the requested class is appropriate here. Placing great
weight on the Federal Circuit's determinations in Freund II, all the Rule 23(a) criteria are satisfied.
In addition, the class members can be identified through the objective criteria in the proposed class
definition we are considering. And finally, in the context of the proposed settlement of this matter,
we conclude that proceeding as a class action is superior to only issuing a precedential decision
concerning the matters before us.
III. APPOINTMENT OF CLASS COUNSEL
Class certification also requires the appointment of class counsel "[u]nless a statute
provides otherwise."83 In appointing class counsel, the Court must consider:
(i) the work counsel has done in identifying or investigating potential claims in the
action; (ii) counsel's experience in handling class actions, other complex litigation,
and the types of claims asserted in the action; (iii) counsel's knowledge of the
applicable law; and (iv) the resources that counsel will commit to representing the
class.[84]
The parties have requested that the Court appoint John D. Niles as class counsel. They note
that:
Mr. Niles is Managing Shareholder and Chief Executive Officer of
the law firm Carpenter Chartered, which is willing to commit
whatever resources are necessary to adequately represent the class—
to include staffing sufficient attorneys and paralegals on this matter
and to devoting such technological resources and additional
personnel to this matter as are warranted. Mr. Niles has represented
veterans and other claimants in significant litigation [citations
omitted]. Through his work in this case and with other clients
seeking relief under a law that affects the provision of benefits by
the Secretary to veterans and their dependents or survivors, he
understands the error at issue and the potential remedies.[85]
83 U.S. VET. APP. R. 23(f)(1).
84 U.S. VET. APP. R. 23(f)(1)(A)(i)-(iv); see Beaudette, 34 Vet.App. at 108.
85 Joint Motion to Certify at 2; see RCA, Ex. C-11 (Declaration of John D. Niles).
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The Court concludes that Mr. Niles satisfies all the requirements for appointment under
Rule 23(f)(1). He has the necessary experience, knowledge, and resources to represent the
proposed class. Accordingly, we appoint Mr. Niles as class counsel.
IV. PROPOSED SETTLEMENT
Once the Court grants class certification, the Court must decide whether to approve the
class action settlement.86 Rule 23(e) governs the process by which the Court considers whether to
approve class action settlements. The procedures under Rule 23(e) that apply to a proposed
settlement are as follows:
(1) The Court must direct notice in a reasonable manner to all class members who
would be bound by the proposal.
(2) If the proposal would bind class members, the Court may approve it only after
a hearing and on finding that it is fair, reasonable, and adequate.
(3) The parties seeking approval must file a statement identifying any agreement
made in connection with the proposal.
(4) Any class member may object to the proposal if it requires Court approval under
this subdivision (e); the objection may be withdrawn only with the Court's
approval.[87]
A. Rule 23(e) Notice of and Right to Object to the Proposed Settlement
Under Rule 23(e)(1), once a class is certified, "[t]he Court must direct notice in a reasonable
manner to all class members who would be bound by the proposal."88 In paragraph 8 of the
proposed settlement agreement, the parties have agreed to a detailed notice plan to inform potential
class members about the proposed settlement. 89 The parties state that the class notice will:
(i) describe the Freund class; (ii) provide the name and contact information of class counsel;
(iii) describe the terms of the settlement; (iv) note that the settlement will bind class members;
(v) note the right to object to the settlement by filing a written objection, including the postal and
email addresses for filing objections; (vi) note that objections must (a) be filed within 30 days of
the class notice, (b) include the objector's full name, and (c) include docket number 21-4168; and
(vii) note that the Court will schedule a hearing to determine whether the proposed settlement is
fair, reasonable, and adequate. 90 The parties plan to publish notice through VA's weekly
newsletter, news.va.gov, 93 community veterans engagement boards, and 84 accredited veterans
86 U.S. VET. APP. R. 23(e).
87 U.S. VET. APP. R. 23(e)(1)-(4).
88 U.S. VET. APP. R. 23(e)(1).
89 Proposed Settlement Agreement ¶ 8.
90 Id.
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service organizations. We find this notice plan sufficient and direct the parties to implement the
notice plan as submitted.
The parties also agree that the class notice will generally "be published and disseminated
within 30 days after the date of a Court order" indicating the means through which objections must
be filed.91 The parties shall designate a mailing address and an email address for the submission
of objections and include those contact addresses in the notice. Within 7 days of the expiration of
the objection period, the parties must provide the Court with a joint report regarding any objections
that were timely submitted to the parties, including the transmittal of the objections themselves.
B. Rule 23(e)(2) Hearing
After completing class notice dissemination and the deadline for class members to file
written objections to the proposed settlement, we will schedule a hearing under Rule 23(e)(2) to
determine whether the proposed settlement is fair, reasonable, and adequate.
V. CONCLUSION
Upon consideration of the foregoing, it is
ORDERED that the parties' December 16, 2025, joint motion to certify a class is granted
as described in this order. The Freund class is defined as "all claimants with an appeal file in the
Veterans Appeals Control and Locator System (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." It is further
ORDERED that the parties' December 16, 2025, joint motion to appoint class counsel is
granted. John D. Niles, Esq., is appointed Class Counsel. It is further
ORDERED that, within 30 days of the date of this order, the parties shall effectuate notice
to class members as provided in Paragraph 8 of the Proposed Settlement Agreement. It is further
ORDERED that upon the expiration of the due date for objections to the proposed
settlement, and no more than 7 days later, the parties notify the Court whether any members of the
class have objected to the proposed settlement agreement. Should there be any objections, the
parties shall forward them to the Court along with the notice required under this paragraph. And it
is further
ORDERED that the motion to approve the proposed settlement and terminate the case is
held in abeyance pending the fairness hearing required under Rule 23(e)(2). The Court will
schedule the Rule 23(e)(2) hearing following the period allowed for objecting to the proposed
settlement.
DATED: March 18, 2026 PER CURIAM.
91 Proposed Settlement Agreement ¶ 8.
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