El Malik v. McDonough

• Court: Court of Appeals for the Federal Circuit
• Decided: December 8, 2022
• Docket: 22-1982
• Status: Unpublished

Opinion

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NOTE: This disposition is nonprecedential.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

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

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

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. 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. 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. Case: 22-1982 Document: 31 Page: 7 Filed: 12/08/2022

EL MALIK v. MCDONOUGH 7

DISMISSED COSTS No costs.