The opinion
Case: 21-4168 Page: 1 of 4 Filed: 08/19/2026
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 then-
surviving 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).
2
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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).
3
Case: 21-4168 Page: 4 of 4 Filed: 08/19/2026
Copies to:
John D. Niles, Esq.
VA General Counsel
4