Freund v. McDonough

Case: 23-1387   Document: 50     Page: 1   Filed: 08/20/2024




   United States Court of Appeals
       for the Federal Circuit
                 ______________________

      MARK FREUND, MARY S. MATHEWSON,
              Claimants-Appellants

                            v.

       DENIS MCDONOUGH, SECRETARY OF
              VETERANS AFFAIRS,
               Respondent-Appellee
              ______________________

                       2023-1387
                 ______________________

     Appeal from the United States Court of Appeals for
 Veterans Claims in No. 21-4168, Judge Amanda L. Meredith, Judge Michael P. Allen, Judge Scott Laurer.
                 ______________________

                Decided: August 20, 2024
                 ______________________

     JONAS WANG, Orrick, Herrington & Sutcliffe LLP,
 Washington, DC, argued for claimants-appellants. Also
 represented by MELANIE L. BOSTWICK; KENNETH
 DOJAQUEZ, JOHN D. NILES, Carpenter Chartered, Topeka,
 KS.

     EVAN WISSER, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington,
 DC, argued for respondent-appellee. Also represented by
 BRIAN M. BOYNTON, ERIC P. BRUSKIN, PATRICIA M.
 MCCARTHY; BRIAN D. GRIFFIN, JONATHAN KRISCH, Office of
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 2                                     FREUND v. MCDONOUGH




 General Counsel, United States Department of Veterans
 Affairs, Washington, DC.

     MEGHAN BROOKS, Veterans Legal Clinic, University of
 South Carolina School of Law, Columbia, SC, for amici curiae Christine Bartholomew, Sergio Campos, Maureen S.
 Carroll, Brooke D. Coleman, Robin Effron, David Freeman
 Engstrom, Myriam Gilles, Maria Glover, Andrew Hammond, Deborah R. Hensler, Helen Hershkoff, Alexandra
 Lahav, David Marcus, Michael Sant’Ambrogio, Adam
 Steinman, Adam Zimmerman.

     PAUL ENRIQUEZ, Covington & Burling LLP, Washington, DC, for amici curiae National Veterans Legal Services
 Program, National Organization of Veterans' Advocates.
 Also represented by ALICE JUWON AHN, ALEXANDER
 SETZEPFANDT, SARA SUNDERLAND, San Francisco, CA;
 MEGAN RODGERS, Palo Alto, CA.
                   ______________________

         Before DYK, HUGHES, and STOLL, Circuit Judges.
 DYK, Circuit Judge.
     Appellants Mark Freund and Mary Mathewson (collectively “petitioners” or “appellants”) appeal from an order of
 the United States Court of Appeals for Veterans Claims
 (“Veterans Court”) dismissing their petitions and denying
 class certification. 1 We conclude that the Veterans Court
 abused its discretion in finding that the adequacy and commonality requirements for class certification were not met.
     We hold, moreover, that the case is not moot as to the
 class claims because it satisfies the inherently transitory
 claim standard. We therefore vacate the order denying



     1   Both current appellants have been substituted for
 the original claimants.
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 FREUND v. MCDONOUGH                                          3



 class certification and dismissing the case, and remand for
 the Veterans Court to further consider its class certification ruling and, if a class is certified, to determine the appropriate relief.
                         BACKGROUND
    This case involves veterans benefits appeals from the
 Department of Veterans Affairs (“VA”) Regional Offices
 (“RO”) to the Board of Veterans’ Appeals (“Board”) that
 were erroneously deactivated by the VA. This occurred because a computer program automatically and improperly
 swept them out of the system.
      The VA currently operates two adjudicatory systems
 for benefits claims, and only the so-called legacy system is
 relevant to this appeal. Under the legacy system, a claimant may start the VA appeals process by submitting a Notice of Disagreement. The VA must either resolve the
 disagreement or prepare a Statement of the Case explaining the VA’s position. 

(d)(1) (2006). If the
 claimant desires review by the Board, the claimant must
 file a “Substantive Appeal” within 60 days of the mailing of
 the Statement of the Case or within a year of the mailing
 of the decision being appealed, whichever is later. 

(b). “Following receipt of a timely Substantive Appeal, the agency of original jurisdiction [the RO] will
 certify the case to the Board.” 

 § 19.35. The RO “may
 close the appeal without notice . . . for failure to respond to
 a Statement of the Case within the period allowed.” Id.
 § 19.32.
     To manage legacy appeals and to determine whether
 legacy appeals have been timely filed, the VA operates an
 electronic database known as the Veterans Appeals Control and Locator System (“VACOLS”). When the VA receives a Notice of Disagreement, the case is entered into
 the system. When the VA receives a timely Substantive
 Appeal, a VA employee notes the appeal in VACOLS. If no
 timely    Substantive    Appeal    is    filed, VACOLS
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 4                                     FREUND v. MCDONOUGH




 “automatically closes legacy appeals on the first day of the
 month following [the relevant deadline] if VACOLS does
 not reflect that a claimant has submitted a Substantive Appeal.” 2 J.A. 2. If the appeal is listed as closed, it is not
 processed by the VA. The VA does not notify the claimant
 that VACOLS closed their appeal. Thus, if a VA employee
 improperly handles a Substantive Appeal, VACOLS will
 close the file without notice to the claimant. The problem
 here is that the system erroneously closed timely appeals,
 at least approximately 3,000 in number, and the VA then
 withheld action on such appeals.
      That is what happened to U.S. Army veterans J. Roni
 Freund and Marvin Mathewson, whose successors are the
 named petitioners in this putative class action.
 Ms. Freund filed a disability claim for PTSD, which the VA
 RO denied. She timely filed a Substantive Appeal to the
 Board. But her appeal was closed by VACOLS, and the VA
 took no action on it for over a year. Ms. Freund died in July
 2022, and her brother Mark Freund was substituted as
 claimant. The other named petitioner, Mr. Mathewson,
 filed a claim for special monthly compensation based on the
 need for aid and attendance. After his claim was denied by
 the RO, he filed a timely Substantive Appeal to the Board
 in December 2017, which was erroneously closed by
 VACOLS. Mr. Mathewson died three years after he filed
 his Substantive Appeal. The VA granted his surviving



     2    The Secretary of Veterans Affairs notes that
 “VACOLS’s characterization . . . has no inherent legal significance; VACOLS cannot actually close, withdraw, or terminate an appeal.”       Br. for Respondent at 6.      For
 consistency with the Veterans Court’s opinion and the parties’ submission, we refer to VACOLS as erroneously “closing” appeals. However, we do not mean to suggest that an
 automatic VACOLS closure will “close” an appeal as the
 term is used in 

.
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 FREUND v. MCDONOUGH                                          5



 spouse Mary Mathewson’s request to be substituted into
 his appeal, but apparently took no other action on it. These
 inactions allegedly violated the statutory requirement
 that, if there is a timely-filed appeal, “[a]ppellate review
 shall be initiated.” 

(a).
      In June 2021, Ms. Freund and Mrs. Mathewson filed a
 mandamus petition in the Veterans Court in aid of this
 court’s and the Veterans Court’s prospective jurisdiction.
 The theory was that the VA had improperly truncated the
 appeals process, and that this action frustrated appellate
 review of the proceedings. See Roche v. Evaporated Milk
 Ass’n, 

 (1943) (noting that “a function of
 mandamus in aid of appellate jurisdiction is to remove obstacles to appeal”); see also Bates v. Nicholson, 

 (Fed. Cir. 2005) (“[T]he Court of Appeals for
 Veterans Claims ‘has the power to issue writs of mandamus in aid of its jurisdiction under the [All Writs Act, 

(a)].’” (quoting Cox v. West, 

 (Fed. Cir. 1998))). The petition sought, inter alia,
 (1) “that the Court declare VA’s withholding of action on
 the timely perfected legacy appeals to constitute agency action ‘unlawfully withheld’ within the meaning of 

(a)(2); and that the no-notice element of the Secretary’s closure of the appeals violates 

 and
 Fair Process;” and (2) “that the Court order the Secretary
 to, within thirty days, reactivate Petitioners’ timely perfected legacy appeals.” J.A. 36. The same day, the petitioners filed a request for class certification and class
 action concerning the following proposed class:
    All 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
    substantive appeal appears in [the Veterans Benefits Management System], and (6) for which VA
    has not issued a rating decision regarding the substantive appeal’s timeliness.
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 J.A. 243. As to the proposed class action, the petitioners
 requested an order that the parties “meet and confer in
 good faith” to determine a method for identifying and notifying claimants who satisfy the proposed class criteria, as
 well as a timeframe for reactivating the erroneously closed
 appeals. J.A. 263–64.
     Following the filing of the mandamus petition, in July
 2021 the VA reactivated both petitioners’ VACOLS files
 and resumed consideration of their claims, agreeing that
 the appeals had been improperly removed from the system.
 The Secretary argued to the Veterans Court that this action mooted the case. Appellants now agree that the case
 was mooted as to the named petitioners, but argue that the
 claims as to the class could properly proceed. The Veterans
 Court held that the case was moot as to the petitioners3
 and did not decide whether it was moot as to the class in
 view of the “inherently transitory” exception. J.A. 18 (citing Godsey v. Wilkie, 

, 219 (2019)). This
 exception recognizes that a case is not moot as to the class,
 even after the named plaintiffs’ individual claims have become moot, if the asserted harm has a short or indefinite
 duration such that there is insufficient time for consideration of class action certification.
     Instead of resolving the mootness issue, the Veterans
 Court considered whether the proposed class met the requirements of the Veterans Court’s version of Rule 23,
 which are that:
     (1) the class is so numerous that consolidating individual actions in the Court is impracticable;




     3  The court also held that the petitioners lacked
 standing to seek declaratory relief that the Secretary had
 acted unlawfully by closing their appeals in the VACOLS
 system. J.A. 13–16.
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 FREUND v. MCDONOUGH                                          7



    (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;
    (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 [VA] 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.
 U.S. VET. APP. R. 23(a). In addition, the Veterans Court’s
 class action rules require consideration of whether a class
 action would better serve the interests of justice than nonclass resolution following a precedential decision, which is
 sometimes referred to as the superiority requirement. U.S.
 VET. APP. R. 22(a)(3).
     The Veterans Court denied class certification, finding
 that the named petitioners failed to satisfy the Rule 23 requirements of commonality and adequacy. The opinion did
 not separately address the other requirements of Rule 23
 or the superiority requirement.
    The petitioners appealed. We have jurisdiction under
 

.
                         DISCUSSION
     We review legal determinations of the Veterans Court
 de novo. Anania v. McDonough, 

 (Fed.
 Cir. 2021). Questions of class certification under Rule 23
 are reviewed for abuse of discretion. See 

(d)(1); see also Monk v. Shulkin, 

 (Fed. Cir. 2017) (applying abuse of discretion standard to
 class certification review); William B. Rubenstein, 1
 NEWBERG & RUBENSTEIN ON CLASS ACTIONS § 14:19 (6th ed.
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 8                                     FREUND v. MCDONOUGH




 2024) (“The abuse of discretion standard for class certification applies to every element individually, not just the ultimate determination.”).
                               I
      There is no question here, and the government does not
 dispute, that mandamus is available to remove obstacles to
 the Veterans Court’s prospective jurisdiction. See Bates,
 

. The sole question here is whether class
 action relief is available. We begin with the merits of the
 Veterans Court’s class certification ruling. On appeal, the
 Secretary does not defend the Veterans Court’s holdings as
 to standing, commonality, or adequacy, describing those
 rulings as “purely dicta” that this court “should either disregard or vacate.” Br. for Respondent at 31. While these
 rulings are hardly dicta, we agree with the Secretary that
 we should vacate those rulings. The Veterans Court erred
 in its standing analysis 4 and abused its discretion in determining that the commonality and adequacy requirements
 of Rule 23 were not met.
     As to commonality, the Veterans Court found that the
 proposed class requirements (including a challenge to



     4    In this respect, the Veterans Court appears to have
 confused standing with mootness. As of the date the petition was filed, the petitioners clearly had standing to seek
 relief as to the Secretary’s unlawful action. Because the
 petitioners suffered injuries traceable to the VA’s conduct
 and “likely to be redressed by a favorable judicial decision,”
 at the time of filing they had standing. Best Med. Int’l, Inc.
 v. Elekta Inc., 

, 1352 (Fed. Cir. 2022) (quoting
 Spokeo, Inc. v. Robins, 

 (2016)). The Secretary does not dispute this on appeal. Br. for Respondent
 at 31. We need not decide whether the Veterans Court has
 authority to grant the requested declaratory relief, an issue
 that was raised but not resolved below. See J.A. 13–14.
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 FREUND v. MCDONOUGH                                         9



 improper closure due to a VACOLS sweep) were insufficient to establish commonality. We think it is clear that
 there is a common answer to a common question here. The
 proposed class members have all suffered the same injury—the Secretary closed their appeals in VACOLS despite their timely filed Substantive Appeals. Should
 petitioners prevail, the VA would be ordered to develop a
 process to identify the class members and reactivate their
 appeals. See J.A. 13 (determining that the Veterans Court
 can order the Secretary to reopen erroneously closed files).
 Thus, the commonality requirement was met.
     As to adequacy, the Veterans Court found that the
 class definition included an implied requirement that the
 VACOLS closure occurred without notice to the claimant
 because one of the requests for class-wide relief was for the
 court to “deem” that “the no-notice element of the Secretary’s closure . . . violates 

 and Fair Process.” J.A. 263. The Veterans Court found that “both
 petitioners were made aware in 2020 that their appeals
 were closed,” so “they were no longer part of the class they
 sought to represent.” J.A. 20.
     The proposed class definition does not include a “no-notice” requirement. Although adding a new requirement
 may constitute error, we need not reach this issue. Even if
 the class definition did include a no-notice factor, the
 named petitioners and class members similarly situated
 satisfied it 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. This is all
 that is required for representation. The petitioners suffered the same injury as the other proposed class members,
 and we can conceive of no conflict of interest that would
 prevent them from serving as class representatives. Thus,
 we think the petitioners satisfy the adequacy requirement.
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 10                                    FREUND v. MCDONOUGH




                              II
     Although the Secretary does not defend the Veterans
 Court’s class certification reasoning, he raises a new argument on appeal that the proposed class does not satisfy the
 requirements of Rule 23 because, he contends, it will be
 “potential[ly] impossib[le]” to identify class members, and
 thus the petitioners failed to demonstrate that the class is
 ascertainable. Br. for Respondent at 31. Ascertainability
 is not one of the Rule 23 requirements, but most circuits
 have implemented some version of an ascertainability test
 as an implied prerequisite to class certification. See, e.g.,
 Cherry v. Dometic Corp., 

, 1302–03 (11th Cir.
 2021) (“And ascertainability—at least as traditionally understood—is an implied prerequisite to the requirements of
 Rule 23(a).”). “[A]scertainability requires only that the
 court be able to identify class members at some stage of the
 proceeding.” NEWBERG & RUBENSTEIN § 3:3. The Secretary
 contends that, due to his efforts to reactivate erroneously
 closed appeals, no remaining class members who perfected
 their appeals after May 2017 exist (a contention that appears to be disputed), and he argues that it will be impossible to identify any remaining claimants who filed pre-
 2017 because at that time the “VA did not consistently include End Product codes corresponding to the receipt of a
 substantive appeal,” which had enabled the Secretary’s review of post-2017 files. Br. for Respondent at 35.
      The 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. These objective criteria are, in the abstract, certainly capable of being determined, even if it is not presently known which claimants
 will ultimately qualify for the class. The Secretary argues,
 however, that it is “simply not possible” for the VA to identify all of the class members because doing so by the Secretary’s proposed method would require the VA “to manually
 review every single VACOLS file closed for the lack of a
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 FREUND v. MCDONOUGH                                           11



 substantive appeal since 2003,” which will require “at least
 hundreds of thousands of work-hours.” Br. for Respondent
 at 34, 35.
      A minority of circuits have adopted “administrative
 feasibility” as part of their ascertainability test, holding
 that a class cannot be certified “if ascertaining the class requires extensive and individualized fact-finding.” Hayes v.
 Wal-Mart Stores, Inc., 

 (3d Cir. 2013). 5
 We reject the minority view of the issue, and agree with the
 majority of circuits that there is no basis for finding a lack
 of ascertainability because it is difficult to identify the class
 members. See, e.g., Cherry, 

. 6 As our sister circuits have recognized, administrative feasibility may
 bear on whether class resolution is superior to individual
 resolution, see 

 but here the Veterans Court has not yet
 ruled on the superiority of class resolution, an issue that
 will need to be resolved on remand. See U.S. VET. APP.
 R. 22(a)(3).
      In connection with the superiority issue, we note that
 the Secretary’s position that identifying the class members
 is “simply not possible” has not been established. See Br.
 for Respondent at 34. Manual review of every file from
 2003 to May 2017 might indeed be time consuming, but
 there may be other ways to identify class members. For
 example, the VA could send notices to claimants who had
 proceedings at the RO during that time period and the


     5   See also Tarrify Props., LLC v. Cuyahoga Cnty., 

 (6th Cir. 2022); EQT Prod. Co. v. Adair,
 

 (4th Cir. 2014).
     6   See also In re Petrobras Sec., 

 (2d
 Cir. 2017); Mullins v. Direct Digital, LLC, 

 (7th Cir. 2015); Sandusky Wellness Ctr., LLC v. Medtox
 Sci., Inc., 

 (8th Cir. 2016); Briseno v.
 ConAgra Foods, Inc., 

 (9th Cir. 2017);
 NEWBERG & RUBENSTEIN § 3:3.
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 12                                     FREUND v. MCDONOUGH




 record reflects no action on the claim, inform them of the
 problem with VACOLS, invite responses from claimants
 who believe that they had timely filed a Substantive Appeal, and then review only those files. To be sure, there are
 also problems with this approach, such as claimants without a current address or claimants who have died without
 a substitute claimant, but those problems do not necessarily mean that class resolution is inferior to individual
 resolution. There may, moreover, be other feasible approaches. These alternatives have not been addressed by
 the parties or the Veterans Court, and should be considered
 on remand.
                              III
      We next consider the issue of mootness as to the class,
 and, in particular, whether the inherently transitory exception to mootness applies. 7 A case is moot if “it no longer
 presents live issues or ‘the parties lack a legally cognizable
 interest in the outcome.’” Monk, 

 (quoting
 Powell v. McCormack, 

 (1969)). For class
 actions, if the case becomes moot as to the individual plaintiffs after class certification, these requirements may be
 met by “a member of the class represented by the named
 plaintiff, even though the claim of the named plaintiff has
 become moot.” Sosna v. Iowa, 

 (1975). In
 other words, an action is not moot if there is a member of a
 certified class that has a live claim.



      7  To the extent that the Secretary claims that the
 case is moot because the VA has done everything possible
 to provide a remedy, see Br. for Respondent at 32 (arguing
 “the putative class members have received all feasible concrete relief requested in the petition”), this argument is
 specious. A case does not become moot because the defendant contends that it has done everything possible to rectify
 unlawful conduct.
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 FREUND v. MCDONOUGH                                        13



     That particular theory does not help the appellants
 here because their claims became moot before class certification. Under such circumstances, normally the class action becomes moot. United States v. Sanchez-Gomez, 

 (2018). However, the Supreme Court has recognized that “[s]ome claims are so inherently transitory
 that the trial court will not have even enough time to rule
 on a motion for class certification before the proposed representative’s individual interest expires.” U.S. Parole
 Comm’n v. Geraghty, 

 (1980). In such
 cases, the “relation back” doctrine applies, and the mootness question is considered as it stood when the complaint
 was filed. See Cnty. of Riverside v. McLaughlin, 

 (1991) (citing Swisher v. Brady, 

, 213
 n.11 (1978)). The “inherently transitory” exception “address[es] circumstances in which the challenged conduct
 was effectively unreviewable” and focuses on “the fleeting
 nature of the challenged conduct giving rise to the claim,
 not on the defendant’s litigation strategy.”        Genesis
 Healthcare Corp. v. Symczyk, 

, 76–77 (2013).
     Appellants argue that the case is not moot with respect
 to the class claims because the “inherently transitory exception to mootness applies,” even though the class had not
 been certified when their individual claims became moot.
 Opening Br. of Appellants at 35. We agree with appellants
 and conclude that these requirements are met in this case;
 therefore, it is not moot.
      An individual claim in this case is very likely to become
 moot before the Veterans Court can rule on class certification because the VA’s practice is to reactivate an appeal if
 it learns that a “timely substantive appeal was received
 and not established in VACOLS.” J.A. 1069; see also Br.
 for Respondent at 10 (“VA had codified in policy . . . a VA
 employee’s obligation to reactivate a closed VACOLS file
 any time a timely substantive appeal is identified.”). This
 process can happen quickly, often within days.              In
 Ms. Freund’s case her appeal was reactivated the day after
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 14                                    FREUND v. MCDONOUGH




 the Veterans Court requested that the VA respond to her
 petition, and Mr. Mathewson’s appeal was reactivated
 within 13 days of the order to respond. These short timelines make it possible, indeed likely, that an individual
 claim will become moot before the court can rule on class
 certification. The Secretary argues that the exception
 should not apply because, in the absence of intervention by
 the VA, the potential class members’ appeals will remain
 closed indefinitely, so there is nothing “inherently transitory” about the VA’s failure to act. The Secretary misunderstands the nature of the inherently transitory
 exception. The reality is that each claim will be addressed
 and immediately restored by the Secretary once it becomes
 known. To be sure, if the Secretary’s actions to correct any
 perceived errors were a “litigation strategy,” the exception
 might not apply. See Genesis Healthcare, 

.
 The Secretary’s action here is not the result of a “litigation
 strategy” by the VA but as a result of the VA’s obligation to
 correct blatant errors in the adjudication system. 8
    Our conclusion that the inherently transitory exception
 applies here is supported by cases in other circuits. For
 example, in Unan v. Lyon, the Sixth Circuit found that the



      8   The appellants also contend that a related “picking
 off” exception to mootness applies. The Supreme Court recognizes an exception to mootness in cases where a defendant strategically “pick[s] off” named plaintiffs by offering
 them the maximum amount of relief they could recover.
 Deposit Guar. Nat. Bank, Jackson, Miss. v. Roper, 

 (1980). The circuits differ on whether to treat
 “picking off” as a separate mootness exception or as a type
 of “inherently transitory” claim. See Wilson v. Gordon, 

, 948–49 (6th Cir. 2016) (discussing the different
 approaches). Because we do not perceive that the VA is
 reactivating erroneously closed claims as a litigation strategy, we need not address the “picking off” exception.
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 FREUND v. MCDONOUGH                                         15



 inherently transitory exception applied to a benefits case
 where “a systemic computer problem . . . erroneously assigned thousands of non-citizens, who may have been eligible for comprehensive Medicaid coverage, to Emergency
 Services Only (‘ESO’) Medicaid.” 

 (6th
 Cir. 2017). The named plaintiffs’ claims were mooted two
 days after the complaint was filed, and the court found that
 the claim was transitory because “claims for a hearing on
 Medicaid eligibility could be resolved quickly by the state”
 and “a named plaintiff in this case does not know whether
 her case will remain alive sufficiently long to enable a district court to certify a class.” 

; see also Wilson v.
 Gordon, 

 (6th Cir. 2016) (applying the inherently transitory exception in the benefits processing
 context because “the State can quickly process a delayed
 application soon after litigation begins, and thus the duration of any plaintiff’s claim is uncertain”). Likewise, in Bellin v. Zucker, the Second Circuit found the inherently
 transitory exception applicable in a case concerning Medicaid applications because federal regulations called for rulings on the requests within 14 or 28 days. 

 (2d Cir. 2021); see also Robidoux v. Celani, 

 (2d Cir. 1993) (“Appellants’ claims are inherently transitory since the [agency] will almost always be able to process a delayed application before a plaintiff can obtain
 relief through litigation.”). Finally, the Ninth Circuit has
 found the inherently transitory exception applicable in a
 case where full reimbursement for owed benefits could be
 paid within approximately one month because “the district
 court could not have been expected to rule on a motion for
 class certification in that period.” Haro v. Sebelius, 

 (9th Cir. 2014).
                               IV
     The appellants ask us to reverse the Veterans Court’s
 ruling and order that a class be certified. While we are vacating the denial of class certification, as discussed earlier,
 the question of superiority has not yet been resolved. We
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 16                                    FREUND v. MCDONOUGH




 think it best for the Veterans Court to consider this issue
 in the first instance. We remand for the Veterans Court to
 determine whether to certify the proposed class and, assuming a class is certified, how to craft the appropriate relief.
                         CONCLUSION
     The inherently transitory exception to mootness applies to this case, and the Veterans Court erred in its analysis of the commonality and adequacy requirements of
 Rule 23. We reject the government’s contention that there
 is an ascertainability problem with respect to the class. We
 remand for the Veterans Court to further consider class
 certification and, if the class is certified, to determine the
 appropriate relief.
                VACATED AND REMANDED
                            COSTS
 Costs to appellants.