NOTE: This disposition is nonprecedential.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 Division, 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 General Counsel, United States Department of Veterans Affairs, Washington, DC. 

 ______________________ 

Case: 22-1982 Document: 31 Page: 1 Filed: 12/08/2022
2 EL MALIK v. MCDONOUGH

Before PROST, CHEN, and STOLL, Circuit Judges.

PER CURIAM. 

Rashid El Malik appeals an order of the Court of Appeals 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 otherwise challenges an ordinary application of the TRAC factors1 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 rehabilitation and employment (“VR&E”) independent living plan. 

S. App’x 57. In 2016, Mr. El Malik brought claims for entitlement to certain equipment and housing modifications 

under the VR&E independent living plan. After a 2018 remand to the Veterans Affairs Regional Office (“RO”) for additional 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 personnel[] reports” and noted that it had “serious concerns regarding 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 disabilities. 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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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 beforehand. 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 explain its merits findings in terms of whether each requested 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 Malik’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 document “caused the unreasonable delays.” S. App’x 16. The 

petition contended that a TRAC analysis was warranted 

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4 EL MALIK v. MCDONOUGH

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 remanded 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 previous 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) (“Mandamus 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 afforded 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 determinations 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 “relevant questions of law”). And, when “presented and necessary to a decision,” we have jurisdiction to “review and 

decide any challenge to the validity of any statute or regulation or any interpretation thereof.” 38 U.S.C. § 7292(c). 

Absent a constitutional issue, however, we lack jurisdiction 

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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 because it no longer presents “a ‘Case’ or ‘Controversy’ for Article 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 treatment . . . of his appeal contesting the denial of home adaptations” 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] requested modifications [was] necessary to provid[e] a measurable increase in [Mr. El Malik’s] level of independence.” 

S. App’x 14. Thus, as the Veterans Court found, Mr. El Malik’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 “nonfrivolous legal question” that we have jurisdiction to review. 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 (citing 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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6 EL MALIK v. MCDONOUGH

argument on this point amounts to a challenge to the application 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 constitutional 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 associated with it, are not before us here and were not addressed 

below. Thus, we will not address this constitutional argument in the first instance. 

CONCLUSION

We have considered Mr. El Malik’s remaining arguments and find them unpersuasive. Because Mr. El Malik’s appeal does not present issues within our limited 

jurisdiction, we dismiss. 

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EL MALIK v. MCDONOUGH 7

DISMISSED

COSTS

No costs.

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