Argument Preview / Panel Activity

Two cases that will be argued in June at the Federal Circuit attracted amicus briefs. One of those cases is Freund v. McDonough. In this case, the Federal Circuit will review a judgment of the Court of Appeals for Veterans Claims, which dismissed the case as moot and denied Freund’s request for class action and class certification. This is our argument preview.

In their opening brief, the appellants, Mark Freund and Mary S. Mathewson, begin by arguing that the lower court erred in dismissing their petition. They assert they had standing at the time their petition was filed. On this point, they argue the lower court “erroneously concluded that they lacked standing as to their requests for a determination that the agency’s closure of their appeals was unlawful, as well as a determination that the failure to provide notice of the closure violated fair process, by overlooking and misconstruing Petitioner’s bases for such relief.” In particular, they argue, “[a]t the time the Petition was filed, no court had ruled that the closures were unlawful, and VA had not provided the notice required for closure of a timely legacy appeal.” The appellants go on to argue that the lower court “wrongly concluded that the Secretary mooted the request classwide by reinstating Petitioners’ individual appeals after Petitioners sought judicial intervention.” The appellants further allege that the lower court erred by denying class certification, because “intra-class conflicts are not present here” and the court conflated “mootness and commonality.”

In his response brief, the Secretary of Veterans Affairs argues that appellants’ claims are moot. He first explains that “the petitioners’ requests for declaratory relief were not sufficient to maintain an actual case or controversy after the petitioners received the concrete relief they requested, reactivation of their appeals.” Furthermore, McDonough point out, the inherently transitory exception to mootness “does not apply here because the challenged conduct . . . is by its own definition not transitory.” He then argues that “none of the prudential considerations underlying the inherently transitory exception to mootness are present here because VA has taken substantial efforts to resolve all of the similarly impacted appeals that VA could reasonably identify.” “Alternatively,” the government contends, “if the Court determines that the petition was not moot when dismissed by the Veterans Court, the appeal is moot now.”

In their reply brief, the appellants maintain that this appeal is not moot. They explain that VA “has no plan to proactively identify and reactivate appeals closed before May 2017.” They also note that “VA concedes that” certain appeals “left in the legacy system . . . can be subject to” erroneous closure. They also maintain their positions that “petitioners had standing” and that “plaintiffs meet class certification requirements.”

Sixteen civil procedure professors filed an amicus brief in support of the claimants-appellants and reversal. They argue that “Injunctive class actions are appropriate when defendants have ‘acted or refused to act on grounds that apply generally to the class.’”

Additionally, the National Veterans Legal Services Program and the National Organization of Veterans’ Advocates filed another amicus brief in support of claimants-appellants and reversal. They argue that, in the present case, a class action is appropriate because “many, possibly all, of these veterans have no idea that their appeals were improperly closed,” as well as the fact that many veterans do not have “attorney representation that would allow them to effectively pursue their claim.”

Oral argument will be heard on Monday, June 3. We will keep track of this case and report on any developments.