Case: 23-1684 Document: 33 Page: 1 Filed: 03/14/2024
NOTE: This disposition is nonprecedential.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
______________________
2023-1684
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 22-5317, Judge Coral Wong Pi-
etsch.
-------------------------------------------------
RASHID EL MALIK,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2023-2279
Case: 23-1684 Document: 33 Page: 2 Filed: 03/14/2024
2 EL MALIK v. MCDONOUGH
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 23-1297, Judge Joseph L. Falvey,
Jr.
______________________
Decided: March 14, 2024
______________________
RASHID EL MALIK, Palos Verdes Estate, CA, pro se.
LAURA OFFENBACHER ARADI, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent-appellee. Also repre-
sented by BRIAN M. BOYNTON, PATRICIA M. MCCARTHY,
LOREN MISHA PREHEIM; BRIAN D. GRIFFIN, JONATHAN
KRISCH, Office of General Counsel, United States Depart-
ment of Veterans Affairs, Washington, DC.
______________________
Before PROST, STOLL, and STARK, Circuit Judges.
PER CURIAM.
Rashid El Malik appeals from two decisions of the
United States Court of Appeals for Veterans Claims (Vet-
erans Court). In Appeal No. 23-1684, he appeals from the
Veterans Court’s order dismissing in part and denying in
part Mr. El Malik’s first petition for a writ of mandamus to
order the Department of Veterans Affairs (VA) to comply
with a Board of Veterans’ Appeals decision. In Appeal
No. 23-2279, Mr. El Malik appeals from the Veterans
Court’s order dismissing his second petition, which re-
quested the same relief as his first petition. We hold that
the Veterans Court did address Mr. El Malik’s finality ar-
gument, but we lack jurisdiction to decide the remaining
issues Mr. El Malik raises. Accordingly, we affirm in part
and dismiss in part.
Case: 23-1684 Document: 33 Page: 3 Filed: 03/14/2024
EL MALIK v. MCDONOUGH 3
BACKGROUND
Mr. El Malik, a disabled veteran, sought certain home
modifications under a Veteran Readiness and Employment
(VR&E) living plan. In an April 7, 2022 decision, the Board
granted in part, denied in part, and remanded in part
Mr. El Malik’s claims for home modifications. SAppx. 1 56–
71. The Board specifically granted Mr. El Malik entitle-
ment to: (1) purchase new hardwood floors, (2) install au-
tomatic door openers, (3) install a lift at the back of the
home, and (4) complete a two-story add-on to the back of
the home. SAppx. 57.
The Board also remanded part of the case to the VA to
further develop whether Mr. El Malik was entitled to vari-
ous other equipment purchases and home modifications.
SAppx. 66–69. In particular, the Board ordered a medical
opinion concerning the necessity of the following accommo-
dations:
(1) an overhead cover for a wheelchair lift at the
front of the home; (2) a cover over the front walk;
(3) widening of all doorways inside the home; (4) in-
stallation of a central air conditioning system;
(5) an addition to the home to include installation
of a new bathroom downstairs; (6) replacement of
the existing wood decks; (7) extension of the rear of
the main bedroom to create space for a walk-in
closet and a work-out room on the floor below;
(8) creating access to an existing outdoor kitchen
located near the pool area; and (9) remodeling the
kitchen to enable access while using a wheelchair.
SAppx. 66–69. Mr. El Malik did not appeal the Board’s de-
cision.
1 Citations to “SAppx.” refer to the Appendix submit-
ted by the government in Appeal No. 23-1684.
Case: 23-1684 Document: 33 Page: 4 Filed: 03/14/2024
4 EL MALIK v. MCDONOUGH
The modification project for Mr. El Malik’s home
started in June 2018. SAppx. 44. By May 2022, the follow-
ing modifications were completed: (1) installation of an el-
evator enabling access to all levels of the house;
(2) installation of a second elevator providing access to the
back patio and deck area from the main living room; (3) an
exterior lift at the front of house enabling access from the
main level to the garage level; (4) an exit door and wood
deck off the master bedroom and bathroom in case of fire;
(5) installation of a deck and sidewalk on the side of the
home for access to electrical boxes; (6) automatic door open-
ers on the front double doors, master bathroom exit door,
and elevator doors; (7) enlargement of the master bath-
room; (8) installation of hardwood floors in the master bed-
room, tile floors and walls in master bathroom, and a lower
clothing rod in the master bath closet; (9) a new roof;
(10) an automatic start back-up generator; and (11) re-
placement of a wood deck adjacent to the exterior lift at the
rear of house. SAppx. 88; SAppx. 111.
In August 2022, Mr. El Malik filed a petition for a writ
of mandamus in the Veterans Court seeking an order di-
recting the VA to implement the Board’s April 2022 deci-
sion. SAppx. 22–25. Mr. El Malik alleged that the VA
refused to comply with the Board’s April 2022 decision, re-
sulting in unreasonable delay, and that he was prejudiced
by the Board’s reliance on an allegedly false statement by
a VR&E representative to deny his VR&E claim. 2
A few months later, while the petition for writ of man-
damus was still pending, the VA requested clarification
2 The allegedly false statement recites: “None of the
below [modifications] have actually been completed.” Ap-
pellant’s Br. 87; see also Appellant’s Br. 12.
“Appellant’s Br. __” refers to pages in Mr. El Malik’s
informal opening brief in Appeal No. 23-1684 as numbered
by operation of an electronic file viewing system.
Case: 23-1684 Document: 33 Page: 5 Filed: 03/14/2024
EL MALIK v. MCDONOUGH 5
from the Board regarding (1) additional automatic door
openers because the VA believed it had satisfied what was
required by the Board, and (2) the two-story addition at the
rear of Mr. El Malik’s home because some of the requested
modifications “related to the current remand instructions.”
Appellant’s Br. 98–99. In response to the VA’s request for
clarification, Mr. El Malik asked the Veterans Court to in-
tervene in this “violation of his due process.” See Peti-
tioner’s Addendum, El Malik v. McDonough, U.S. Vet. App.
No. 22-5317 (Nov. 15, 2022), ECF No. 18, at 2.
The Veterans Court denied in part and dismissed in
part Mr. El Malik’s petition for writ of mandamus. The
Veterans Court dismissed the petition as it relates to the
VA “refusing” to implement the Board’s order as moot on
the grounds that the lift systems, hardwood flooring, and
automatic door openers were installed as contemplated by
the order. The Veterans Court also found that the VA’s
request for clarification on the nature of the ordered two-
story addition was appropriate given the denial and re-
mand of other items sought by Mr. El Malik, and that seek-
ing such clarification was not a refusal to follow an order.
In addressing Mr. El Malik’s allegation of unreasonable de-
lay, the Veterans Court analyzed the TRAC factors and
concluded that the circumstances did not reflect a delay “so
egregious as to warrant mandamus” and denied this part
of the petition. SAppx. 12 (quoting Martin v. O’Rourke,
891 F.3d 1338, 1343 n.5 (Fed. Cir. 2018)); see also Tele-
comms. Rsch. & Action Ctr. v. FCC, 750 F.2d 70, 79–80
(D.C. Cir. 1984). It explained Congress did not provide a
timetable in the applicable statutory scheme; that the VA
had worked toward implementing the modifications or-
dered by the Board; and that a judicial mandate to force
the VA to work faster would shift the VA’s resources from
other veterans. Finally, the Veterans Court interpreted
Mr. El Malik’s allegations that the Board relied on false
statements as mere disagreement with the Board’s denial
Case: 23-1684 Document: 33 Page: 6 Filed: 03/14/2024
6 EL MALIK v. MCDONOUGH
of his claims and explained that a writ of mandamus was
not the proper vehicle to challenge that denial.
Mr. El Malik moved for reconsideration of the Veterans
Court’s decision. He argued, among other things, that the
VA’s request for clarification of a Board decision violated
38 C.F.R. § 20.1100 3 and his constitutional rights.
SAppx. 130, 133. The Veterans Court denied the motion
because Mr. El Malik failed to demonstrate that the deci-
sion “overlooked or misunderstood any point of law or fact.”
SAppx. 151.
In February 2023, Mr. El Malik filed a second petition
for a writ of mandamus, again asking the Veterans Court
to direct the VA to implement the Board’s April 2022 order.
23-2279 SAppx. 10–12. He again argued that the VA un-
reasonably delayed execution of the order and that the VA’s
request for clarification violates the laws relating to the fi-
nality of a Board decision. The Veterans Court dismissed
the second petition as duplicative of Mr. El Malik’s first pe-
tition. 23-2279 SAppx. 3–4. Mr. El Malik appeals both
Veterans Court decisions.
DISCUSSION
This court’s jurisdiction to review mandamus decisions
of the Veterans Court is limited. Although we have juris-
diction to “decide all relevant questions of law, including
interpreting constitutional and statutory provisions,”
38 U.S.C. § 7292(d)(1), we “may not review (A) a challenge
to a factual determination, or (B) a challenge to a law or
3 38 C.F.R. § 20.1100, entitled “Finality of decisions
of the Board,” recites that “all Board decisions are final on
the date stamped on the face of the decision” and that
“[f]inal Board decisions are not subject to review except as
provided in 38 U.S.C. 1975 and 1984 and 38 U.S.C. chap-
ters 37 and 72.”
Case: 23-1684 Document: 33 Page: 7 Filed: 03/14/2024
EL MALIK v. MCDONOUGH 7
regulation as applied to the facts of a particular case,” id.
§ 7292(d)(2).
On appeal, Mr. El Malik argues that the Veterans
Court failed to address his finality argument and that his
due process rights were violated because the Veterans
Court’s decisions relied on a false statement. See Appel-
lant’s Br. 11–12; 23-2279 Appellant’s Br. 3–4, 11–16. We
address each in turn.
Mr. El Malik first contends that the Veterans Court’s
decisions failed to address his argument regarding final-
ity—i.e., that the VA’s request for clarification was an at-
tempt to change a decision in violation of 38 C.F.R.
§ 20.1100. We disagree. The Veterans Court found that
the VA’s efforts to clarify certain aspects of the Board’s de-
cision did not undermine or challenge the finality of the
Board decision. See SAppx. 10 (“Rather, by seeking such
clarification from the Board, VA has acted on the Board’s
grant and has taken a step to ensure that the Board’s grant
is implemented as contemplated by the Board.”). For ex-
ample, “[t]he Board’s April 2022 decision did not specify
which structural changes were within the scope of the
Board’s award of a two-story addition at the rear of the
home” but “some claimed components that had been re-
manded by the Board could be part of a two-story addition
to the rear of the home.” SAppx. 10. Insofar as Mr. El Ma-
lik disagrees with the Veterans Court’s finding that the VA
was taking steps to implement the Board decision, we lack
jurisdiction to review that factual dispute.
Mr. El Malik then asserts that the Veterans Court vio-
lated his due process rights by relying on the allegedly false
statement made by the VA. 4 Appellant’s Br. 9 (Mr. El
4 Mr. El Malik made a substantially similar argu-
ment in one of his many other appeals before us. Appellee’s
Case: 23-1684 Document: 33 Page: 8 Filed: 03/14/2024
8 EL MALIK v. MCDONOUGH
Malik arguing that “[t]he Veterans Court accepted the Re-
spondent representation that the components were com-
pleted and denied the writ. Here the Court denied the writ
based on false statements . . . .”). He specifically alleges
that his “due process rights are violated in a case that con-
siders tainted evidence.” Appellant’s Br. 12; see also 23-
Br. 9–10; see El Malik v. McDonough, Appeal No. 22-1982;
El Malik v. Wilkie, Appeal No. 19-1971; El Malik v. Wilkie,
Appeal No. 19-1637; El Malik v. Shulkin, Appeal No. 17-
1167; El Malik v. McDonald, Appeal No. 15-7060; El Malik
v. Shinseki, Appeal. No. 14-7009; El Malik v. Shinseki, Ap-
peal No. 12-7069; El Malik v. Shinseki, Appeal No. 12-
7041; and El Malik v. Shinseki, Appeal No. 11-7201.
In dismissing one of these appeals—also an appeal of a
denial of a petition for a writ of mandamus—we rejected
Mr. El Malik’s argument that the Board erred in relying on
the same allegedly false statement he takes issue with
here. See El Malik v. McDonough, No. 22-1982, 2022 WL
17495984, at *3 (Fed. Cir. Dec. 8, 2022) (nonprecedential).
The opinion explained that Mr. El Malik’s “arguments are
properly understood as a challenge to the Board’s April
2022 decision. The merits of that decision, and any alleged
procedural defects associated with it, are not before us
here.” Id.
This court has previously sanctioned pro se petitioners
who have attempted to relitigate previously adjudicated is-
sues. For example, this court has sanctioned pro se appel-
lants by imposing the opposing party’s attorneys fees. See,
e.g., Constant v. United States, 929 F.2d 654, 657–59
(Fed. Cir. 1991). Courts have also imposed sanctions re-
quiring individuals to seek leave from the court before fil-
ing any future appeal. Id. at 659. Before imposing such
sanctions, the court warns Mr. El Malik to not raise this
issue yet again in another appeal from a denial of a petition
for writ of mandamus.
Case: 23-1684 Document: 33 Page: 9 Filed: 03/14/2024
EL MALIK v. MCDONOUGH 9
2279 Appellant’s Br. 3. Mr. El Malik argues “that veterans
have a protected property interest that requires fair adju-
dication of their disability benefits claims.” 23-1684 Reply
Br. 2.
Contrary to Mr. El Malik’s assertion, he does not raise
a constitutional challenge that “confer[s] upon us jurisdic-
tion that we otherwise lack.” Helfer v. West, 174 F.3d 1332,
1335 (Fed. Cir. 1999). The Veterans Court did not rely on
the allegedly false statement to deny his petitions. The
court based its denial of writ on Mr. El Malik’s failure to
demonstrate that the VA refused to comply with the
Board’s April 2022 order. SAppx. 13. We thus discern no
constitutional issue appropriate for our review in these ap-
peals.
Moreover, to the extent Mr. El Malik disagrees with
the merits of or the procedures surrounding the Board’s
April 2022 decision, we cannot address what is not properly
before us. As explained by the Veterans Court, if Mr. El
Malik’s arguments regarding this allegedly false statement
is a challenge to the Board’s April 2022 denial in part of
benefits, an appeal of the Board decision is the proper ve-
hicle to challenge the denial—not a writ petition. See
SAppx. 14 (citing Cheney v. U.S. Dist. Ct. for D.C., 542 U.S.
367, 380–81 (2004) (holding a writ is improper where the
petition has “other adequate means to attain the relief he
desires”)). Before us on appeal are the Veterans Court’s
decisions regarding Mr. El Malik’s petitions for writ of
mandamus. We will not entertain what would be a chal-
lenge to the Board decision.
CONCLUSION
We have considered Mr. El Malik’s remaining argu-
ments and find them unpersuasive. We hold that the Vet-
erans Court did not ignore Mr. El Malik’s argument
regarding finality. Because we lack jurisdiction to review
the rest of Mr. El Malik’s challenges to the Veterans
Case: 23-1684 Document: 33 Page: 10 Filed: 03/14/2024
10 EL MALIK v. MCDONOUGH
Court’s determinations, we affirm in part and dismiss in
part.
AFFIRMED-IN-PART AND DISMISSED-IN-PART
COSTS
No costs.