concurring:
I concur in the judgment of the Court. I do not join in the Court’s opinion for two reasons. First, I do not think it this Court’s proper function to make suggestions to the Federal Circuit about what issues it might wish to consider.
Second, I believe that this Court should do no more than apply, as it does, United States v. Munsingwear, Inc., 340 U.S. 36, 39, 71 S.Ct. 104, 106-07, 95 L.Ed. 36 (1950), and should not speculate on the recusal issues which, we all agree, have been rendered moot. See Pontarelli v. Stone, 978 F.2d 773, 776 (1st Cir.1992). Having wisely decided at its very inception to adopt “the jurisdictional restrictions of the Article III case or controversy rubric”, Mokal v. Derwinski, 1 Vet.App. 12, 15 (1990), this Court should adhere to those constraints.
I am mindful that we have a mandate from the Federal Circuit to review the single-judge decision denying recusal. However, as the majority notes also, ante at 156, that mandate was issued without the Federal Circuit’s knowledge of the jurisdictional facts regarding mootness, and the Circuit has had no opportunity to consider action dictated by Munsingwear, supra. It is true that this Court’s task on remand, pursuant to the law-of-the-case doctrine, is to follow the findings, holdings, and instructions contained in the appellate court’s mandate. However, literal compliance with the appellate court’s mandate is not required where there is “an extremely good reason to do otherwise.” Vieux Carre Property Owners, Residents and Associates, Inc. v. Brown, 948 F.2d 1436, 1442 (5th Cir.1991) (Vieux Carre). The Federal Circuit has held that the law-of-the-ease doctrine does not bar a lower court from *160considering the question of mootness, where, as here, the appellate court did not rule on that issue and it was raised for the first time on remand. Exxon Corp. v. U.S., 931 F.2d 874, 877 (Fed.Cir.1991) (law-of-the-case doctrine applies only to issues actually determined by appellate court); see also Vieux Carre, 948 F.2d at 1442-43. Indeed, a court has a “duty to consider on remand whether mootness has deprived it of jurisdiction to consider the suit.” Vieux Carre, 948 F.2d at 1443.
Under these circumstances, literal compliance with the Circuit’s mandate has led the Court to issue an opinion regarding 28 U.S.C. § 455 that is “advisory in nature”. Pontarelli, 978 F.2d at 776. I believe that such action is an unsound and unwarranted departure from our precedents and self-imposed judicial constraint.