Argument Recap / Panel Activity

Last week, the Federal Circuit heard oral argument in Freund v. McDonough, a veterans case that attracted an amicus brief. 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 certification. Judges Dyk, Hughes, and Stoll heard the argument. This is our argument recap.

Jonas Wang argued for the appellants, Mark Freund and Mary Mathewson. Wang began by pointing out that the appellants were “only two among thousands” of veterans who had their appeals wrongly closed. One judge then asked what the typical period of delay between filing a notice of appeal and receiving a decision by the Board of Veteran’s Appeals is. Wang responded that, while delays lasting a few years are normal, the claimants do not know that the delay is due to their appeal being “essentially lost” as opposed to the normal course of delays. A judge then asked why VA couldn’t simply notify people to check with the Board if they have not received a response in three years. Wang argued that there was “no reason” it could not notify the claimants. Wang further argued that any burden should not be on the claimants given that many veterans proceed without counsel, and knowledge of claims is “particularly within the agency’s possession.”

Turning from arguments regarding responsibility for ensuring appeals are properly resolved, Wang then argued that, while the “petitioners’ complaints are moot,” the class claims are not moot because of the “inherently transitory exception.” A judge then asked if the Federal Circuit should certify the class or if certification should be left to the Veterans Court. Wang responded by arguing that, “if this court is convinced there is a class,” this court should certify it.

Eric Wisser argued for the Secretary of Veterans Affairs. As Wisser began his argument, one judge interrupted to say “let’s just assume we find that the Veterans Court erred in finding that the class was moot, and that there wasn’t standing for the class.” This judge then asked if the Secretary had any arguments about class certification on remand. In response, Wisser argued that the petitioners’ claims were moot before class certification, meaning the case “cannot go forward.” He further argued that, even if the inherently transitory exception applies, “remand as to class certification is still appropriate” because the Veterans Court did not make findings as to all of the elements of class certification.

One judge then asked what exactly would be disputed on remand. Wisser responded with ascertainability, stating that it was “not simply hard” to ascertain the class but “not actually possible.” A judge then questioned what precedent would allow ascertainability not to be met simply because it was difficult. Wisser noted that, while it was disputed amongst the circuits, there was a Third Circuit case that held that the class “must be currently and readily ascertainable.” A judge then asked why the present case was not ascertainable. Wisser pointed out that there were an estimated 781,951 cases that could potentially have been affected, and, he continued, it is not clear that there is contact information for those people. 

Returning to the issue of mootness, Wisser argued that “this court will need to make a clear finding that the challenged conduct”—indefinite inaction with respect to appeals—”is inherently transitory by its nature.” A judge replied that indefinite inaction with respect to appeals is transitory given that, once the relevant people are identified, they can get relief. While Wisser argued that this approach is inconsistent with the Supreme Court’s understanding of the inherently transitory exception, one judge responded that Wisser was incorrectly reading the relevant case.

In rebuttal, Wang maintained the importance of allowing the class to be certified given the pro-se nature of many veterans’ claims. 

We will continue to monitor this case and report on developments.