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`NOTE: This disposition is nonprecedential.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
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`2
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`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.
`
`

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`Case: 23-1684 Document: 33 Page: 3 Filed: 03/14/2024
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`EL MALIK v. MCDONOUGH
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`3
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`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.
`
`

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`EL MALIK v. MCDONOUGH
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`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.
`
`

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`Case: 23-1684 Document: 33 Page: 5 Filed: 03/14/2024
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`EL MALIK v. MCDONOUGH
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`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
`
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`EL MALIK v. MCDONOUGH
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`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. § 20.11003 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.”
`
`

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`EL MALIK v. MCDONOUGH
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`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
`
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`EL MALIK v. MCDONOUGH
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`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.
`
`

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`EL MALIK v. MCDONOUGH
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`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
`
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`EL MALIK v. MCDONOUGH
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`Court’s determinations, we affirm in part and dismiss in
`part.
`AFFIRMED-IN-PART AND DISMISSED-IN-PART
`COSTS
`
`No costs.
`
`