Case: 22-1982 Document: 31 Page: 1 Filed: 12/08/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RASHID EL MALIK,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2022-1982
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 22-892, Judge Coral Wong Pietsch.
______________________
Decided: December 9, 2022
______________________
RASHID EL MALIK, Palos Verdes Estate, CA, pro se.
JANA MOSES, Commercial Litigation Branch, Civil Di-
vision, United States Department of Justice, Washington,
DC, for respondent-appellee. Also represented by BRIAN M.
BOYNTON, WILLIAM JAMES GRIMALDI, PATRICIA M.
MCCARTHY; JONATHAN KRISCH, Y. KEN LEE, Office of Gen-
eral Counsel, United States Department of Veterans Af-
fairs, Washington, DC.
______________________
Case: 22-1982 Document: 31 Page: 2 Filed: 12/08/2022
2 EL MALIK v. MCDONOUGH
Before PROST, CHEN, and STOLL, Circuit Judges.
PER CURIAM.
Rashid El Malik appeals an order of the Court of Ap-
peals for Veterans Claims (“Veterans Court”) denying his
petition for a writ of mandamus. Mr. El Malik’s petition,
based on a claim of unreasonable delay, sought to expedite
a decision from the Board of Veterans’ Appeals (“Board”)
on his remanded home-adaptation claims. Because
Mr. El Malik’s appeal is moot, at least in part, and other-
wise challenges an ordinary application of the TRAC fac-
tors 1 to the facts of this case, we dismiss for lack of
jurisdiction.
BACKGROUND
Mr. El Malik is a disabled veteran who has been
deemed eligible for benefits under a vocational rehabilita-
tion and employment (“VR&E”) independent living plan.
S. App’x 57. In 2016, Mr. El Malik brought claims for en-
titlement to certain equipment and housing modifications
under the VR&E independent living plan. After a 2018 re-
mand to the Veterans Affairs Regional Office (“RO”) for ad-
ditional factual development, the Board denied
Mr. El Malik’s claims in May 2019. Appellant’s Informal
Br. App’x 4.
The Board’s 2019 denial referenced certain “VA person-
nel[] reports” and noted that it had “serious concerns re-
garding the Veteran’s credibility.” Id. at 6. That portion of
the Board’s decision relied on statements from the VR&E
Chief as casting doubt on the extent of Mr. El Malik’s dis-
abilities. Mr. El Malik appealed the Board’s 2019 denial.
1 The TRAC factors refer to the factors set forth in
Telecommunications Research & Action Center v. FCC,
750 F.2d 70, 79 (D.C. Cir. 1984).
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EL MALIK v. MCDONOUGH 3
In December 2020, the Veterans Court set aside the
Board’s decision. El Malik v. Wilkie, No. 19-3611, 2020 WL
7380098, at *3 (Vet. App. Dec. 16, 2020) (“2020 Remand
Order”). It found that the Board erred in relying on the
VR&E Chief’s statements because Mr. El Malik was not
given an opportunity to respond to the statements before-
hand. Id. Additionally, the Veterans Court noted that the
Board had not adequately described or analyzed the bases
for its entitlement determinations. It instructed the Board,
on remand, to give Mr. El Malik notice and an opportunity
to respond to the VR&E Chief’s statements and to fully ex-
plain its merits findings in terms of whether each re-
quested modification would be necessary to provide a
measurable increase in independence. Id. at *2–3.
In May 2021, the Board remanded to the RO so that it
could provide Mr. El Malik with a copy of the VR&E Chief’s
statements, give him the opportunity to provide a written
response, readjudicate his claim, and, if the readjudication
were adverse to him, issue a new supplemental statement
of the case and return the case to the Board. S. App’x
32–33. In June 2021, the RO provided Mr. El Malik a copy
of the statement and gave him 30 days to respond. S. App’x
34. Mr. El Malik filed a timely response. S. App’x 43. In
October 2021, the RO maintained its denial of Mr. El Ma-
lik’s claims and then returned the claims to the Board.
S. App’x 45, 52.
On February 9, 2022, Mr. El Malik filed the mandamus
petition at issue here. S. App’x 12–20. The petition, based
on a claim of unreasonable delay, requested that
Mr. El Malik’s appeal contesting the 2019 denial of his
claims be expedited and that the Board address the merits
of each requested accommodation. S. App’x 12, 14. The
petition pointed to the VR&E Chief’s statements as “a false
document” and asserted that the Board’s use of the docu-
ment “caused the unreasonable delays.” S. App’x 16. The
petition contended that a TRAC analysis was warranted
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4 EL MALIK v. MCDONOUGH
because of the Board’s actions surrounding the statements,
but it didn’t request any separate relief on that basis. Id.
In April 2022, before the Veterans Court ruled on the
mandamus petition, the Board ruled on Mr. El Malik’s
claims, which the RO had returned to the Board in October
2021. S. App’x 54. The Board granted Mr. El Malik’s
claims as to some modifications, denied as to some, and re-
manded for clarification and supplementation of the record
(including obtaining a new medical opinion) as to others.
S. App’x 66. The Board also noted that it would not discuss
the VR&E Chief’s statements in its decision because the
VA had conceded to certain inaccuracies during the previ-
ous Veterans Court appeal. S. App’x 57.
In May 2022, the Veterans Court denied Mr. El Malik’s
mandamus petition. El Malik v. McDonough, No. 22-892,
2022 WL 1703264, at *1 (Vet. App. May 27, 2022) (“Man-
damus Order”). The Veterans Court analyzed each of the
TRAC factors and concluded that Mr. El Malik “failed to
demonstrate that any delay here has been so egregious to
warrant the issuance of a writ.” Id. at *5 (citing Martin v.
O’Rourke, 891 F.3d 1338 (Fed. Cir. 2018)). The Veterans
Court also considered the April 2022 Board decision and
concluded that “[t]o the extent the petitioner has been af-
forded the relief sought, his petition is now moot.” Id.
DISCUSSION
Our review of Veterans Court mandamus decisions is
limited. Our jurisdiction extends only to those determina-
tions on mandamus petitions that raise “non-frivolous legal
question[s]” otherwise within our jurisdiction. Beasley v.
Shinseki, 709 F.3d 1154, 1158 (Fed. Cir. 2013); see
38 U.S.C. § 7292(d)(1) (providing jurisdiction to decide “rel-
evant questions of law”). And, when “presented and neces-
sary to a decision,” we have jurisdiction to “review and
decide any challenge to the validity of any statute or regu-
lation or any interpretation thereof.” 38 U.S.C. § 7292(c).
Absent a constitutional issue, however, we lack jurisdiction
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EL MALIK v. MCDONOUGH 5
to “review (A) a challenge to a factual determination, or
(B) a challenge to a law or regulation as applied to the facts
of a particular case.” Id. § 7292(d)(2).
Further, we lack jurisdiction over a moot petition be-
cause it no longer presents “a ‘Case’ or ‘Controversy’ for Ar-
ticle III purposes.” Mote v. Wilkie, 976 F.3d 1337, 1341
(Fed. Cir. 2020) (citing Already, LLC v. Nike, Inc., 568 U.S.
85, 91 (2013)). And “a case becomes moot when a claimant
receives all her requested relief.” Id. “[A] mere remand”
does not provide all requested relief when a claimant seeks
a “decision” on mandamus. Id. at 1341–42.
Here, Mr. El Malik’s petition sought “expeditious treat-
ment . . . of his appeal contesting the denial of home adap-
tations” and requested that the Board address the merits
of each of his requested modifications “in an expeditious
and timely manner.” S. App’x 12. At least with respect to
the home modifications the Board granted or denied, Mr.
El Malik received the relief he requested in his mandamus
petition—the Board addressed whether “each of [those] re-
quested modifications [was] necessary to provid[e] a meas-
urable increase in [Mr. El Malik’s] level of independence.”
S. App’x 14. Thus, as the Veterans Court found, Mr. El Ma-
lik’s petition is moot at least with respect to those claims. 2
As for Mr. El Malik’s contention that the Veterans
Court applied the wrong legal standard when analyzing
unreasonable delay, this argument does not raise a “non-
frivolous legal question” that we have jurisdiction to re-
view. See Beasley, 709 F.3d at 1158. The TRAC analysis
involves a flexible inquiry that “should be analyzed based
on its unique circumstances.” Mote, 976 F.3d at 1346 (cit-
ing Martin, 891 F.3d at 1348). And Mr. El Malik’s
2 Since we lack jurisdiction in any event, we need not
address whether the Board’s mixed decision mooted
Mr. El Malik’s entire mandamus petition.
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6 EL MALIK v. MCDONOUGH
argument on this point amounts to a challenge to the ap-
plication of the TRAC factors to the circumstances of
Mr. El Malik’s case. The Veterans Court’s decision did not,
as Mr. El Malik contends, rest on a legal determination
about when the unreasonable-delay clock starts to run. See
Appellant’s Informal Br. 4–6. Rather, in assessing the
TRAC “rule of reason” factor, the Veterans Court focused
on how the Board and RO had handled Mr. El Malik’s
claims since the 2020 remand to assess whether the overall
delay was reasonable. Mandamus Order, 2022 WL
1703264, at *3–4. There is no non-frivolous question about
whether the Veterans Court applied the correct legal
standard here, and we lack jurisdiction to reassess how it
evaluated the circumstances of this case.
Finally, Mr. El Malik argues that the presence of the
VR&E Chief’s statements in his file violates his constitu-
tional rights. But Mr. El Malik’s petition did not raise that
issue. It only pointed to the VR&E Chief’s statements as a
cause of the Board’s alleged delay and a reason that the
delay should be considered unreasonable, not as part of a
separate request for relief. To be sure, the Veterans Court
noted that Mr. El Malik’s reply—which, unlike his petition,
was filed after the Board’s April 2022 decision—did present
arguments about the VR&E Chief’s statements still being
in his file. Mandamus Order, 2022 WL 1703264, at *2.
However, these arguments are properly understood as a
challenge to the Board’s April 2022 decision. The merits of
that decision, and any alleged procedural defects associ-
ated with it, are not before us here and were not addressed
below. Thus, we will not address this constitutional argu-
ment in the first instance.
CONCLUSION
We have considered Mr. El Malik’s remaining argu-
ments and find them unpersuasive. Because Mr. El Ma-
lik’s appeal does not present issues within our limited
jurisdiction, we dismiss.
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EL MALIK v. MCDONOUGH 7
DISMISSED
COSTS
No costs.