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`NOTE: This disposition is nonprecedential.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
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`EL MALIK v. MCDONOUGH
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`
`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-
`tors1 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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`Case: 22-1982 Document: 31 Page: 3 Filed: 12/08/2022
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`EL MALIK v. MCDONOUGH
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`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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`Case: 22-1982 Document: 31 Page: 4 Filed: 12/08/2022
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`EL MALIK v. MCDONOUGH
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`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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`Case: 22-1982 Document: 31 Page: 5 Filed: 12/08/2022
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`EL MALIK v. MCDONOUGH
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`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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`Case: 22-1982 Document: 31 Page: 6 Filed: 12/08/2022
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`EL MALIK v. MCDONOUGH
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`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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`Case: 22-1982 Document: 31 Page: 7 Filed: 12/08/2022
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`EL MALIK v. MCDONOUGH
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`7
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`DISMISSED
`COSTS
`
`No costs.
`
`