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`NOTE: This disposition is nonprecedential.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
`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.
`eral Counsel, United States Department of Veterans Af-
`fairs, Washington, DC.
` ______________________


`Case: 22-1982 Document: 31 Page: 2 Filed: 12/08/2022
`Before PROST, CHEN, and STOLL, Circuit Judges.
`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-
`tors1 to the facts of this case, we dismiss for lack of
`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-
`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).


`Case: 22-1982 Document: 31 Page: 3 Filed: 12/08/2022
`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


`Case: 22-1982 Document: 31 Page: 4 Filed: 12/08/2022
`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.
`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


`Case: 22-1982 Document: 31 Page: 5 Filed: 12/08/2022
`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.


`Case: 22-1982 Document: 31 Page: 6 Filed: 12/08/2022
`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.
`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.


`Case: 22-1982 Document: 31 Page: 7 Filed: 12/08/2022
`No costs.

This document is available on Docket Alarm but you must sign up to view it.

Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge

Still Working On It

This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.

Give it another minute or two to complete, and then try the refresh button.


A few More Minutes ... Still Working

It can take up to 5 minutes for us to download a document if the court servers are running slowly.

Thank you for your continued patience.

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Your document is on its way!

If you do not receive the document in five minutes, contact support at

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.

Access Government Site

We are redirecting you
to a mobile optimized page.

Document Unreadable or Corrupt

Refresh this Document
Go to the Docket

We are unable to display this document.

Refresh this Document
Go to the Docket