Andrew J. Winterbottom v. Denis McDonough, Secretary of Veterans Affairs

United States Court of Appeals
for the Federal Circuit
______________________
ANDREW J. WINTERBOTTOM,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2023-2097
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 22-4604, Judge Grant Jaquith.
______________________
Decided: December 27, 2024
______________________
LAURA ANDERSON, The Veterans Law Group, Poway,
CA, argued for claimant-appellant. Also represented by
MARK RYAN LIPPMAN.
SOSUN BAE, Commercial Litigation Branch, Civil
Division, United States Department of Justice,
Washington, DC, argued for respondent-appellee. Also
represented by BRIAN M. BOYNTON, WILLIAM JAMES
GRIMALDI, PATRICIA M. MCCARTHY; AMANDA BLACKMON,
BRIAN D. GRIFFIN, Office of General Counsel, United States
Department of Veterans Affairs, Washington, DC.
______________________
Case: 23-2097 Document: 40 Page: 1 Filed: 12/27/2024

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WINTERBOTTOM v. MCDONOUGH 2
Before DYK, CHEN, and HUGHES, Circuit Judges.
HUGHES, Circuit Judge.
Appellant Andrew J. Winterbottom appeals a non-final
remand order from the Court of Appeals for Veterans
Claims. J.A. 1. Mr. Winterbottom seeks review of his
judicial bias claim and seeks an order recusing the
veterans law judge in further proceedings. Appellant’s Br.
8–9. Because, with limited exceptions not applicable here,
we may not review a non-final order, we dismiss.
I
Mr. Winterbottom served on active duty from
September 1993 to September 1997. He was subsequently
awarded a 30% disability rating for his service-connected
post-traumatic stress disorder, which was increased to a
50% rating in October 2017. He appealed this decision to
the Board of Veterans’ Appeals, seeking a higher disability
rating.
In June 2021, Mr. Winterbottom attended a Board
hearing to assess the scope of his PTSD claim and testified
concerning his PTSD severity. During this hearing, the
Board judge asked Mr. Winterbottom several questions
about specific episodes of violent altercations. See J.A. 61
(discussing whether Mr. Winterbottom committed
unprovoked acts of violence during work); J.A. 62–63
(discussing violent altercations in a non-work context and
whether they were provoked). These exchanges would later
form the basis for Mr. Winterbottom’s complaint of judicial
bias, where he alleged that the Board judge displayed a
lack of impartiality and made a considered effort to
“minimize [Mr. Winterbottom’s] symptomology.”
Appellant’s Br. 22.
In May 2022, the Board denied Mr. Winterbottom a
PTSD disability rating greater than 50%. The Board
concluded that the conduct detailed in the hearing
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WINTERBOTTOM v. MCDONOUGH 3
testimony did not warrant a higher rating because
Mr. Winterbottom’s irritability and violence were not
unprovoked. Mr. Winterbottom appealed to the Court of
Appeals for Veterans Claims (Veterans Court).
Winterbottom v. McDonough, No. 22-4604, 2023 WL
3735148 (Vet. App. May 31, 2023); J.A. 1.
Mr. Winterbottom argued to the Veterans Court that
remand was warranted because the Board failed to
adequately state its reasons or bases for its decision and
the Board showed bias at the hearing. J.A. 3. The Veterans
Court partially agreed and remanded because the Board
did not adequately explain why it gave decreased probative
weight to an opinion from a private counselor. Regarding
Mr. Winterbottom’s bias allegation, the Veterans Court
concluded that the Board had not exhibited any bias that
warranted reassignment on remand. Id. The Veterans
Court said that the questioning did not show bias, but
instead was an attempt to assess whether
Mr. Winterbottom’s described violent conduct was
provoked or unprovoked. Id.
Mr. Winterbottom timely appealed.
II
Our jurisdiction over appeals from the Veterans Court
is limited by statute. See 38 U.S.C. § 7292; Dixon v.
Shinseki, 741 F.3d 1367, 1373 (Fed. Cir. 2014); Wanless v.
Shinseki, 618 F.3d 1333, 1336 (Fed. Cir. 2010). We are
vested with authority to “decide all relevant questions of
law, including interpreting constitutional and statutory
provisions[,]” 38 U.S.C. § 7292(d)(1), and “[w]e review
statutory and regulatory interpretations of the Veterans
Court de novo.” Gazelle v. Shulkin, 868 F.3d 1006, 1009
(Fed. Cir. 2017). We may not review “a challenge to a
factual determination” or “a challenge to a law or
regulation as applied to the facts of a particular case,”
except to the extent that the appeal presents a
constitutional issue. 38 U.S.C § 7292(d)(2).
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WINTERBOTTOM v. MCDONOUGH 4
While 38 U.S.C. § 7292 does not articulate a finality
requirement, we have declined to review non-final orders
of the Veterans Court and “concluded that finality is a
jurisdictional requirement.” Ravin v. McDonough,
107 F.4th 1357, 1360 (Fed. Cir. 2024). The exception to the
finality requirement is narrow. In Williams v. Principi, we
articulated that we will depart from the strict rule of
finality when a veteran establishes that: (1) the Veterans
Court issued a clear and final decision on a legal issue that
(a) is separate from the remand proceedings, (b) will
directly govern the remand proceedings, or, (c) if reversed
by this court, would render the remand proceedings
unnecessary; (2) the resolution of the legal issue adversely
affects the party seeking review; and (3) there is a
substantial risk that the decision would not survive a
remand, i.e., that the remand proceeding may moot the
issue. 275 F.3d 1361, 1364 (Fed. Cir. 2002).
III
Mr. Winterbottom recognizes that his appeal of the
Veterans Court’s non-final remand order does not satisfy
any of the exceptions to the final judgment rule described
in Williams. Appellant’s Br. 11–12, Appellant’s Reply Br. 2.
Mr. Winterbottom instead proposes, “[t]o this list of
exceptions should be added another, namely, an appeal
raising a claim of judicial bias.” Appellant’s Br. 12. We
decline to extend Williams.
A mandamus petition is a well-established procedural
vehicle to raise claims of judicial bias. Other jurisdictions
have held that seeking recusal of a judicial officer by
petition for a writ of mandamus is proper. Cobell v. Norton,
334 F.3d 1128, 1139 (D.C. Cir. 2003) (collecting cases). In
fact, “every circuit to have addressed the issue has found it
proper.” Id. (citing In re Boston’s Children First, 244 F.3d
164 (1st Cir. 2001); In re IBM Corp., 45 F.3d 641 (2d Cir.
1995); In re Antar, 71 F.3d 97 (3d Cir. 1995); In re Sch.
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WINTERBOTTOM v. MCDONOUGH 5
Asbestos Litig., 977 F.2d 764 (3d Cir. 1992); In re Rodgers,
537 F.2d 1196 (4th Cir. 1976); In re Faulkner, 856 F.2d 716
(5th Cir. 1988); In re Aetna Cas. & Sur. Co., 919 F.2d 1136
(6th Cir. 1990) (en banc); In re Hatcher, 150 F.3d 631
(7th Cir. 1998); In re Edgar, 93 F.3d 256 (7th Cir. 1996);
Nichols v. Alley, 71 F.3d 347 (10th Cir. 1995)).
We see no reason to create a new exception to finality
that would be inconsistent with how other circuits handle
judicial bias claims. We are not foreclosing review of
judicial bias claims—our holding today merely clarifies
that the appropriate procedural vehicle to seek
interlocutory review of a judicial bias claim is through a
mandamus petition. Alternatively, Mr. Winterbottom may
wait until there is an appealable final judgment in his case
over which we have jurisdiction.
IV
We have considered Mr. Winterbottom’s remaining
arguments and find them unpersuasive. Because the
decision that Mr. Winterbottom challenges is a non-final
remand order and does not meet the Williams criteria, the
appeal is dismissed.
DISMISSED
COSTS
No costs.
Case: 23-2097 Document: 40 Page: 5 Filed: 12/27/2024

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