Case: 19-1971 Document: 21 Page: 1 Filed: 05/13/2020
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RASHID EL MALIK,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2019-1971
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 18-7435, Judge Coral Wong Pi-
etsch.
______________________
Decided: May 13, 2020
______________________
RASHID EL MALIK, Palos Verde's Estate, CA, pro se.
DANIEL S. HERZFELD, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent-appellee. Also represented by
JOSEPH H. HUNT, ROBERT EDWARD KIRSCHMAN, JR., LOREN
MISHA PREHEIM; MARTIE ADELMAN, BRIAN D. GRIFFIN, Of-
fice of General Counsel, United States Department of Vet-
erans Affairs, Washington, DC.
Case: 19-1971 Document: 21 Page: 2 Filed: 05/13/2020
2 EL MALIK v. WILKIE
______________________
Before LOURIE, LINN, and WALLACH, Circuit Judges.
PER CURIAM.
Rashid El Malik (“El Malik”) seeks review of the Court
of Appeals for Veterans Claims’ (“Veterans Court”) denial
of mandamus seeking to compel the Board of Veterans Ap-
peals (“Board”) to issue a decision on his claim for an in-
creased rating for his back disability. See Rashid El Malik
v. Wilkie, 2019 WL 1602008, No. 18-7435 (Vet. App. 2019)
(“Veterans Court Decision”). El Malik also seeks review of
the denial of mandamus to resolve a dispute over a contract
between the Department of Veterans Affairs (“VA”) and a
contractor to provide accommodations to his home. Fi-
nally, El Malik seeks review of the denial of mandamus to
compel the Veterans Court to waive the filing fee and lift
the requirement that he file a motion for leave to file future
petitions. Because the first issue is now moot, that part of
El Malik’s appeal is dismissed. Because the Veterans
Court did not abuse its discretion with respect to the sec-
ond issue, that part of the appeal is affirmed. Because the
final issue improperly seeks to collaterally attack a prior
final decision by the Veterans Court, that part of his appeal
is denied.
I
With respect to the first issue, we agree with the gov-
ernment that El Malik’s appeal is now moot because he has
received the relief he sought. Monk v. Shulkin, 855 F.3d
1312, 1316 (Fed. Cir. 2017) (“A case is said to lack an actual
or concrete dispute where the relief sought by a plaintiff is
satisfied or otherwise rendered moot.”). The Board already
ordered the VA to provide a physical examination, the VA
already held the examination in May of 2019, and El Ma-
lik’s claim for an increased rating has now been denied. If
Case: 19-1971 Document: 21 Page: 3 Filed: 05/13/2020
EL MALIK v. WILKIE 3
El Malik wishes to contest that determination, he may di-
rectly appeal to the Veterans Court.
We see no merit to El Malik’s argument that the delay
he seeks to redress will repeat and make it impossible for
him to vindicate his rights. The VA has already taken the
action he seeks to compel through mandamus. Further de-
lays are wholly speculative. We recognize El Malik’s frus-
tration with the substantial delay between his 2007 appeal
to the Board seeking a higher rating and the Board’s 2017
receipt and docketing of that appeal. His claim is now pro-
ceeding, however, and mandamus would provide no further
remedy to expedite or secure his rights.
Because his writ is moot, we do not address El Malik’s
argument about the legal standard applied by the Veterans
Court or his potential entitlement to fees under the Equal
Access to Justice Act.
For the foregoing reasons, El Malik’s appeal of the de-
nial of his petition to order the VA to provide a physical
examination is dismissed.
II
With respect to the second issue, we agree with the gov-
ernment that mandamus is not appropriate to challenge
the VA Regional Office’s (“RO”) November 2018 decision
denying El Malik’s request for travertine tiles. El Malik’ s
potential options for challenging the RO’s decision were to
either file an appeal with the Board followed by a direct
appeal to the Veterans Court, or to file an appeal with the
Civilian Board of Contract Appeals (“CBCA”). See Lamb v.
Principi, 284 F.3d 1378 (Fed. Cir. 2002) (“The extraordi-
nary writs cannot be used as substitutes for appeals, even
though hardship may result from delay and perhaps un-
necessary trial” (quoting Banker’s Life & Cas. Co. v. Hol-
land, 346 U.S. 379, 383 (1953))). El Malik did not appeal
to the Board from the RO’s decision, and has, in fact, filed
an appeal with the CBCA. These “alternative means to
Case: 19-1971 Document: 21 Page: 4 Filed: 05/13/2020
4 EL MALIK v. WILKIE
attain the desired relief” preclude the grant of mandamus.
See Veterans Court Decision, 2019 WL 1602008, at *1 (iden-
tifying conditions for the grant of mandamus (citing Cheney
v. U.S. Dist. Ct., 542 U.S. 367, 380–81 (2004))).
We see no merit to El Malik’s assertion that pursuing
an appeal would have been futile because the Board lacked
jurisdiction to adjudicate a breach of contract. As correctly
noted by the Veterans Court, El Malik was free to make his
jurisdictional argument to the Board on appeal from the
RO’s decision. Because El Malik has alternative means to
challenge the RO’s decision with respect to the travertine
tile issue, the Veterans Court did not abuse its discretion
in denying mandamus. The Veterans Court’s denial of
mandamus on the contract issue is thus affirmed.
III
El Malik also improperly seeks to collaterally attack a
prior final decision by the Veterans Court, alleging that the
Veterans Court violated his due process rights by preemp-
tively denying waiver of the filing fee and requiring him to
file a motion for leave to file future petitions. See El Malik
v. McDonald, 2016 WL 5462684 (Vet. App. 2016) (single-
judge order), aff’d as the decision of the court, 2016 WL
7029302 (Vet. App. 2016) (per curiam). El Malik did not
appeal that decision, and it thereafter became final. See 38
U.S.C. § 7291(a) (“A decision of the United States Court of
Appeals for Veterans Claims shall become final upon the
expiration of the time allowed for filing, under section 7292
of this title, a notice of appeal from such decision, if no such
notice is duly filed within such time.”). See also U.S. Vet.
App. R. 38 (“If the Court determines that an appeal, peti-
tion, motion, or other filing is frivolous, it may . . . enter
such order as it deems appropriate, to include sanctions.”);
El Malik, 2016 WL 5462684, at *2–3 (explaining the ra-
tional for its order). We see no abuse of discretion in the
Veterans Court’s reliance on the earlier final decision and
Case: 19-1971 Document: 21 Page: 5 Filed: 05/13/2020
EL MALIK v. WILKIE 5
no merit to El Malik’s argument that his due process rights
were violated. That part of his appeal is therefore denied.
DISMISSED IN PART, AFFIRMED IN PART, AND
DENIED IN PART
COSTS
No costs.