[00:00:00] Speaker 02:
Our last case this morning is number 23-29-7, Wynnebottom business done.

[00:00:07] Speaker 02:
Okay, Ms.

[00:00:07] Speaker 00:
Anderson.

[00:00:14] Speaker 00:
This is a UC appeal in the older appeal system.

[00:00:18] Speaker 00:
And it's the practice of the board, the same judge, handle all proceedings, even if remanded by the Veterans Court.

[00:00:27] Speaker 00:
This court has jurisdiction to hear this appeal based on 38 USC 7292.

[00:00:31] Speaker 02:
How do we have jurisdiction?

[00:00:33] Speaker 02:
It's a non-final order.

[00:00:36] Speaker 00:
Yes, Your Honor.

[00:00:38] Speaker 00:
There's exceptions and two non-final orders.

[00:00:42] Speaker 00:
This doesn't meet the Williams criteria.

[00:00:43] Speaker 02:
right your honor um judicial so you're asking us to create a brand new exception to the non-final order yes your honor and what's your authority for that the due process of the the 14th amendment sure but there's claims there's judicial bias claims going on throughout the judiciary hopefully not very many of them but

[00:01:05] Speaker 02:
Are you aware of any jurisdiction or other court or other areas where you can appeal a non-final order with the claim of judicial bias?

[00:01:19] Speaker 02:
Let me give you a specific hypothetical.

[00:01:22] Speaker 02:
Let's say that a district court denies a motion for summary judgment, and in it makes a lot of inflammatory

[00:01:30] Speaker 02:
remarks about counsel and the weakness of the positions.

[00:01:34] Speaker 02:
Just assume it's biased on its face.

[00:01:37] Speaker 02:
Can you take an immediate appeal of that interlocutory denial of summary judgment?

[00:01:45] Speaker 00:
The opening brief references several cases in Rial Nishiri notes.

[00:01:50] Speaker 02:
Can you answer my question?

[00:01:52] Speaker 02:
Do you think you can do it in that circumstance?

[00:01:54] Speaker 02:
Yes.

[00:01:55] Speaker 02:
And what's your support for that?

[00:01:57] Speaker 02:
Are those cases you cited

[00:01:59] Speaker 02:
appeals of non-final orders or are they mandamus actions?

[00:02:05] Speaker 00:
They are mandamus actions.

[00:02:08] Speaker 02:
Well, mandamus, you don't need a final order.

[00:02:12] Speaker 00:
Yeah.

[00:02:13] Speaker 02:
Why isn't mandamus the appropriate avenue to raise claims or judicial bias against board officials here?

[00:02:21] Speaker 02:
Instead of creating a brand new exception to finality.

[00:02:24] Speaker 00:
Those are civil cases and in the Veterans Court.

[00:02:28] Speaker 02:
These are civil cases too.

[00:02:30] Speaker 00:
Right.

[00:02:31] Speaker 00:
It's a pro-claimant veteran system here.

[00:02:34] Speaker 02:
I know, but what you're asking us to do is create something new.

[00:02:38] Speaker 02:
Already a well-established procedural vehicle that you could use to raise claims of judicial bias.

[00:02:47] Speaker 02:
Why would we ever do something

[00:02:49] Speaker 02:
that creates some kind of brand new exception to finality that's never existed that would be at odds with the precedent of every other court that considers these kind of non-final orders and how you raise judicial bias claims.

[00:03:06] Speaker 00:
So in this case, all the proceedings had concluded and it wouldn't make a difference whether you did an appeal or a petition.

[00:03:16] Speaker 00:
Essentially, the record was complete

[00:03:19] Speaker 00:
So in filing the appeal, it's the same action, the same proceedings have been taking place.

[00:03:26] Speaker 02:
Well, you didn't file it as a mandamus petition, though.

[00:03:29] Speaker 02:
I mean, you have to file it with the Veterans Court first, and then you get appeals to us.

[00:03:36] Speaker 02:
I understand the Veterans Court heard your argument on that, but that doesn't mean it somehow transformed it into a denial mandamus.

[00:03:48] Speaker 02:
Well, we didn't hear anything that prevents you right this day from filing in the name of petition with the Veterans Court and saying, you know, you got this wrong.

[00:03:57] Speaker 02:
You know, this this board judge is so biased against us, you never should have sent it back.

[00:04:05] Speaker 00:
We raised the judicial bias claim immediately after the hearing if there was evidence of bias there.

[00:04:15] Speaker 00:
But in this case, the judge being the fact finder,

[00:04:19] Speaker 00:
We wanted to wait until the board issued a decision.

[00:04:22] Speaker 00:
And at that point, all proceedings had concluded.

[00:04:26] Speaker 00:
So at that point, we didn't see a difference.

[00:04:31] Speaker 02:
I mean, the difference is you have a non-final remand order that's not with that in our jurisdiction, unless we go to the extraordinary step of creating an exception to finality that I see no reason that we need to.

[00:04:44] Speaker 00:
So in filing in reviewing the board chairman's Handling of motions to refuse based on bias You can't we were unable to find any in which he made a fighting of bias.

[00:04:56] Speaker 02:
So in the unlike what that difference that makes you file it with the board chairman and

[00:05:01] Speaker 02:
say reassignment, the board chairman says no bias, no reassignment.

[00:05:05] Speaker 02:
You file a mandamus petition with the Veterans Corps.

[00:05:08] Speaker 02:
The Veterans Corps decides that you appeal it to us.

[00:05:11] Speaker 00:
We're just trying to provide additional litigation and proceedings and just do this as efficiently as possible.

[00:05:17] Speaker 02:
We can't take jurisdiction over cases that we don't have jurisdiction over just to permit additional proceedings that you have to follow to perfect your jurisdiction.

[00:05:27] Speaker 00:
We were trying to avoid additional litigation, and looking at how the board handles those motions to recuse, we haven't been able to find one that was granted based on bias.

[00:05:39] Speaker 00:
And without a clear finding, even if it's reassigned to a different judge, they can still take into consideration the biased judge's decision and findings and testimony during the hearing.

[00:05:51] Speaker 00:
And that would just cause the same

[00:05:54] Speaker 00:
kind of the taint of the judicial proceedings for that.

[00:06:00] Speaker 00:
The record here shows several instances of judicial bias, not just apparent but actual, from the June 2021 court hearing and the May 2022 court decision.

[00:06:16] Speaker 00:
The Veterans Law Judge ignored downplay and mischaracterized evidence of severe PTSD symptoms

[00:06:24] Speaker 00:
including suicidal ideations, neglect of personal hygiene, and unprovoked irritability and violence, including at his job and workplace that resulted in demotion, a loss of the same pay.

[00:06:40] Speaker 01:
These things sound more like just disagreements you have with his analysis and findings.

[00:06:46] Speaker 01:
I think normally a judicial bias argument would contain some

[00:06:53] Speaker 01:
breathtaking statements made by the judge below that would really give us, I don't know, some reason to be taken aback.

[00:07:04] Speaker 00:
The evidence in this case and that was presented at the hearing and after the hearing when the judge was involved in the proceedings was very strong evidence of an increased rating for PTSD.

[00:07:21] Speaker 00:
And so it was the judge's conduct at the hearing and his leading questions that downplayed the symptoms, because there's just the difference between a 50% and 70% rate.

[00:07:33] Speaker 01:
And the Veterans Court said that VLJ needs to go back and take a second look and actually answer for all the evidence that you had on your side that he failed to do in the first board decision.

[00:07:48] Speaker 00:
Yes, Your Honor.

[00:07:48] Speaker 00:
However, the Veterans Court really limited it to that one statement and kind of mischaracterized the argument there.

[00:07:55] Speaker 00:
The judge wasn't just required to look at whether it was unprovoked or provoked.

[00:08:05] Speaker 00:
The criteria in the 70% is impaired impulse control, such as unprovoked.

[00:08:12] Speaker 00:
So, and under the Maurahan case, the judge doesn't need to find that exact criteria, but just equivalent to after reviewing how it affects and impairs their occupational and social impairment.

[00:08:30] Speaker 00:
The judge really focused on that and his questions were leading the veteran to kind of minimize his symptoms going as far as saying,

[00:08:42] Speaker 00:
choking out a citizen was a reasonable response because he was provoked.

[00:08:49] Speaker 00:
And other physical acts that led to his demotion were reasonable, rather than trying to kind of get the severity and frequency and duration of the symptoms, not just the violent acts, but the suicidal ideations

[00:09:11] Speaker 00:
and his neglected personal hygiene really stood out.

[00:09:16] Speaker 00:
He's missing half his teeth.

[00:09:18] Speaker 00:
The employer was asking him to shower.

[00:09:20] Speaker 00:
He was falling asleep on the job.

[00:09:23] Speaker 00:
It's just rife with examples.

[00:09:26] Speaker 00:
And then on top of that, the judge dismissed the medical opinion that was submitted after the hearing for a number of reasons, including that the expert was paid.

[00:09:39] Speaker 00:
I mean, this is an experienced judge.

[00:09:42] Speaker 00:
It was a little bizarre.

[00:09:44] Speaker 00:
The VA pays all of their examiners, so those examiners' opinions were also on the record and considered, but not deemed to be given less weight due to that fact.

[00:09:58] Speaker 00:
The judge had conclusory and unsupported findings for

[00:10:03] Speaker 00:
The suicidal ideations and neglected personal hygiene are ones that the veteran's testimony and he had witnessed their testifying severely impacted occupational and social impairment.

[00:10:16] Speaker 00:
The judge brought it down to the number of symptoms listed in that category rather than occupational and social impairment, basically neglecting any use of additional evidence to that point.

[00:10:30] Speaker 00:
The testimony of the veteran was for the entire period, not just one-fourth of the evidence where there's four pieces of evidence in here.

[00:10:43] Speaker 02:
This all sounds like it goes to the merits.

[00:10:45] Speaker 02:
I mean, if he gets it wrong again, you can appeal to the Veterans Court and say, got it wrong again.

[00:10:49] Speaker 02:
If the Veterans Court agrees with you, you win.

[00:10:54] Speaker 02:
And if the Veterans Court doesn't agree with you, then you can appeal to us on the merits.

[00:10:58] Speaker 02:
Just disagreeing with the way a judge handles a case is never going to be a claim of judicial bias.

[00:11:06] Speaker 02:
I understand the VA system is frustrating.

[00:11:09] Speaker 02:
There are too many remands.

[00:11:11] Speaker 02:
It takes too long.

[00:11:12] Speaker 02:
And you have an admiral goal here of trying to short circuit this and get this to a judge who you think will do a better job with the case.

[00:11:22] Speaker 02:
But we're stuck with the statutes and rules we have.

[00:11:25] Speaker 02:
You just can't appeal a non-final remand order, particularly when your arguments, they don't even seem to rise to the level of judicial bias claim at all, even if we did decide we had jurisdiction.

[00:11:36] Speaker 02:
Because what you just went through is completely arguments about how he handled the evidence, how he weighed the evidence, how he conducted his review, what categories and the like.

[00:11:48] Speaker 02:
That's disagreement with legal disagree with it, but even if he completely got it wrong, that doesn't show judicial bias.

[00:11:57] Speaker 00:
The amount of evidence of him dismissing and ignoring and mischaracterizing evidence is substantial.

[00:12:08] Speaker 00:
And the weight he gave to the medical opinions and the way he was evaluating them just rises to the level of bias in this case.

[00:12:26] Speaker 00:
I mean, the regulations don't require that he meet, that the veteran meets specific criteria.

[00:12:32] Speaker 00:
The regulations require an overall picture of occupational impairment.

[00:12:35] Speaker 00:
Here there's, you know, there's evidence.

[00:12:38] Speaker 00:
The judge received evidence that his work was making accommodations for him.

[00:12:43] Speaker 00:
There was such strong evidence in this case that the judge ignored.

[00:12:48] Speaker 02:
So your argument is essentially this case was such a slam dunk for your client that the only explanation he lost was because the judge was biased against him.

[00:12:59] Speaker 00:
It wasn't just the conclusions in

[00:13:03] Speaker 00:
the decision.

[00:13:06] Speaker 00:
His conduct at the hearing, there was leading questions that were leading the veteran to minimize his symptoms throughout it without going over the frequency and severity of other severe symptoms that were testified to.

[00:13:22] Speaker 00:
The dismissal of the medical opinion that carried great weight in this and that really helped

[00:13:31] Speaker 00:
bring out the veteran's symptoms throughout the entire period in question.

[00:13:34] Speaker 00:
It was all very conclusory.

[00:13:39] Speaker 01:
You're well into your rebuttal time.

[00:13:41] Speaker 01:
Do you want to save it?

[00:13:43] Speaker 00:
Yes, Your Honor.

[00:13:43] Speaker 00:
Thank you.

[00:13:49] Speaker 02:
Ms.

[00:13:49] Speaker 02:
Bae.

[00:13:54] Speaker ?:
Thank you, Your Honor.

[00:13:55] Speaker 03:
May it please the Court?

[00:13:56] Speaker 03:
This Court should dismiss Mr. Wendt-Bottom's appeal because the appeal is from a non-final order.

[00:14:01] Speaker 03:
and has not established that this court should create a new exception to the rule of finality.

[00:14:05] Speaker 02:
Do you agree that they could bring a judicial bias claim up through mandamus?

[00:14:09] Speaker 03:
I agree that if they had brought a mandamus petition to the Veterans Court right after the hearing contesting the judge's bias, and the Veterans Court had denied that, then they could have appealed the Veterans Court's denial of the mandamus.

[00:14:27] Speaker 02:
Because that's the way judicial bias claims work in other areas.

[00:14:30] Speaker 03:
That is my understanding.

[00:14:32] Speaker 03:
As we stated in our brief,

[00:14:36] Speaker 03:
Other circuit court cases that have discussed judicial bias at the district court level have been interlocutory appeals taken from mandamus petitions filed right after the bias became apparent to the filing party.

[00:14:49] Speaker 03:
And yes, as your honor mentioned, if Mr. Winterbottom were to be raised against a judicial bias claim, it should go through mandamus.

[00:14:59] Speaker 03:
I'm according to this court simply doesn't have jurisdiction to consider Mr. Winterbottom's claim, but even if this court is determined it could hear an appeal under an exception to finality, it would still lack jurisdiction over Mr. Winterbottom's claim because this due process

[00:15:15] Speaker 03:
claim is a constitutional one-ending only.

[00:15:19] Speaker 03:
As I think Judge Chen and Judge Hughes mentioned, Mr. Winterbottom's arguments really go to the sufficiency of evidence.

[00:15:26] Speaker 03:
And importantly, the Veterans Court actually remanded back to the board to discuss that, to discuss why they didn't give as much probative weight to the private medical opinion and such.

[00:15:38] Speaker 03:
this court should dismiss Mr. Winterbottom's appeal.

[00:15:41] Speaker 03:
I'm happy to answer any other questions.

[00:15:43] Speaker 03:
Otherwise, we respectfully request that the court dismiss.

[00:15:46] Speaker 01:
Thank you.

[00:15:47] Speaker 01:
Putting aside the judicial bias, what about just a constitutional due process claim?

[00:15:53] Speaker 01:
Could someone appeal that from a non-final order?

[00:15:59] Speaker 03:
My understanding is that

[00:16:01] Speaker 03:
this court is bound by the exceptions established in Williams.

[00:16:06] Speaker 03:
And therefore, if we're talking about a non-final remand order, then I think the appellant would still have to meet the criteria established in Williams.

[00:16:13] Speaker 03:
Otherwise, it could wait until the Veterans Court issues the final decision and then bring a constitutional claim to this court.

[00:16:21] Speaker 03:
But that's, again, not what happened here.

[00:16:22] Speaker 01:
Do you agree that if this goes back on remand and Mr. Winterbottom

[00:16:31] Speaker 01:
doesn't get the result that he likes at the board and then again doesn't like the result he gets at the Veterans Court, then he could at that point in time appeal that adverse decision to the Federal Circuit and also raise his judicial bias claims to the extent we have the jurisdiction to consider aspects of that judicial bias claim.

[00:16:50] Speaker 03:
I think that assuming he raises that claim at each level, then this court could review

[00:16:59] Speaker 03:
could at least theoretically review a judicial bias due process claim, but I would still submit that if Mr. Winterbottom's rationale were the same as he presents here, which is really the sufficiency of the evidence, then we would probably still submit that this court lacks jurisdiction because he's not actually bringing a due process claim, but really just contesting the sufficiency of the evidence, which is beyond this court's jurisdiction.

[00:17:22] Speaker 02:
Thank you.

[00:17:22] Speaker 02:
Okay, thank you.

[00:17:25] Speaker 02:
Ms.

[00:17:25] Speaker 02:
Anderson, you've got a little over a minute and a half.

[00:17:31] Speaker 00:
Thank you, Your Honors.

[00:17:33] Speaker 00:
Williams didn't address or decide the issue of whether judicial bias is an exception to the final judgment rule.

[00:17:41] Speaker 00:
Therefore, it's not stare decisis on that issue.

[00:17:43] Speaker 00:
And the Veterans Court is a uniquely pro-claimant system.

[00:17:50] Speaker 00:
The policy behind that supports an exception here.

[00:17:56] Speaker 00:
to safeguard the VA's adjudicatory system where there's disability benefits at stake.

[00:18:05] Speaker 00:
The judge is the fact finder, and then again, it's a veterans pro-claiming system where veterans are revered for their service.

[00:18:18] Speaker 00:
And again, it would have been premature to raise it.

[00:18:20] Speaker 00:
right after the hearing, where normally it would be expected to, because here we wanted to wait until there was more evidence of judicial bias, the high standard for judicial bias, and after the judge's decision was when it was raised.

[00:18:41] Speaker 00:
Thank you, Your Honor.

[00:18:42] Speaker 00:
That's my time.