NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

RASHID EL MALIK,

Claimant-Appellant

v.

DAVID J. SHULKIN, SECRETARY OF VETERANS 

AFFAIRS,

Respondent-Appellee

______________________ 

2017-1167

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 15-4885, Judge Margaret C. 

Bartley.

______________________ 

Decided: April 11, 2017

______________________ 

RASHID EL MALIK, Palos Verdes Estate, CA, pro se.

STEVEN MICHAEL MAGER, Commercial Litigation 

Branch, Civil Division, United States Department of 

Justice, Washington, DC, for respondent-appellee. Also 

represented by BENJAMIN C. MIZER, ROBERT E.

KIRSCHMAN, JR., FRANKLIN E. WHITE, JR.; BRIAN D.

GRIFFIN, JONATHAN KRISCH, Office of General Counsel, 
2 EL MALIK v. SHULKIN

United States Department of Veterans Affairs, Washington, DC.

______________________ 

Before PROST, Chief Judge, LOURIE and TARANTO, Circuit Judges.

PER CURIAM. 

Rashid El Malik (“El Malik”) appeals from the order 

of the U.S. Court of Appeals for Veterans Claims (“Veterans Court”) denying his petition for a writ of mandamus. 

El Malik v. McDonald, No. 15-4885, 2016 WL 3227961 

(Vet. App. June 13, 2016) (“Order”). Because we find that 

the Veterans Court properly denied El Malik the extraordinary relief of mandamus, we affirm. 

BACKGROUND

On December 29, 2015, El Malik filed a petition for a 

writ of mandamus in the Veterans Court, asserting that 

he “is without judicial process and is confronted with an 

extraordinary situation.” Respondent’s Appendix (“R.A.”) 

15. El Malik claimed that the Department of Veterans 

Affairs (“VA”) and its agents improperly disbursed Special 

Adaptive Housing (“SAH”) funds from an escrow account 

to BNS Construction (“BNS”), a contractor hired to work 

on his home to accommodate his motorized wheelchair,

without ensuring that BNS had obtained required permits; allowed BNS to work on his home without the 

permits; and ignored municipal stop-work orders. R.A. 

20–22. El Malik further alleged that the VA breached its 

fiduciary duties and violated its own procedures when it 

disbursed escrow funds to BNS, which abandoned the 

project without completing the contracted-for work. R.A.

16–22. El Malik stated that the remaining escrow funds 

are insufficient to complete the remaining work and asked 

the Veterans Court to (1) “[c]larify the confusion” between 

38 U.S.C. § 2105 and VA Manual M26-12, ch. 8; (2)

“[e]xpeditiously remit the misused funds” to the escrow 
EL MALIK v. SHULKIN 3

account; and (3) require the VA to “put [him] back in the 

position he would have been in but for the misuse of the 

funds.” R.A. 16.

On February 25, 2016, the Veterans Court ordered 

the Secretary of Veterans Affairs (“Secretary”) to respond. 

Order at *1. On March 15, 2016, the Secretary responded

and informed the court that a request for equitable relief

as to the SAH funds had been denied on January 28, 2016

after review because there was no evidence of administrative error or loss suffered due to reliance on an erroneous 

benefits determination. R.A. 48, 52. As to the “confusion” 

between 38 U.S.C. § 2105 and VA Manual M26-12, ch. 8, 

the Secretary argued that El Malik mistakenly equated

the VA’s fiduciary functions and responsibilities outlined

in VA Manual M26-12 with a perceived government 

interest in his residence. R.A. 49. The Secretary stated 

that 38 U.S.C. § 2105 only relates to the government’s 

non-assumption of liability over any real property under 

the SAH program in which it does not have a legal interest, and that this provision is unrelated to the VA’s responsibilities outlined in VA Manual M26-12. R.A. 49. 

As to El Malik’s claims involving BNS, the Secretary 

stated that El Malik should seek relief through litigation 

in the California state court system by means of a claim

for a possible breach of contract by BNS, not by means of 

a writ of mandamus from the Veterans Court. R.A. 48. 

On March 18, 2016, El Malik replied, generally arguing that he did not have an alternative because he “withdrew [his] suit [in California] with prejudice” after BNS 

had agreed to return $5,000 of the grant fund and the VA 

denied him equitable relief even though he had not requested it. R.A. 55, 57.

On June 13, 2016, a single judge of the Veterans 

Court denied El Malik’s petition for a writ of mandamus, 

finding that El Malik had failed to meet his burden of 

establishing that he is entitled to mandamus relief. 
4 EL MALIK v. SHULKIN

Order, 2016 WL 3227961 at *2–4. First, citing its own 

precedent, Werden v. West, 13 Vet. App. 463 (Vet. App. 

2000), the Veterans Court held that it lacked jurisdiction 

to review petitions challenging the manner in which an

SAH grant is disbursed by the Secretary even though it 

expressed certain “reservations” about whether Werden

had been correctly decided. Order, 2016 WL 3227961 at 

*2 & n.1 (citing Werden, 13 Vet. App. at 468). Second, the 

Veterans Court concluded that, even assuming jurisdiction, it would not be able to provide the legal or equitable 

relief El Malik was seeking in the forms of “remit[tance]” 

or “put[ing] [him] back in the position he would have been

in.” Id. at *3. The Veterans Court noted that the statute

precludes the Secretary from paying additional SAH 

grants after the approved SAH grants have been exhausted, and it lacks the power to grant equitable relief. Id. 

Finally, even assuming the view of the law most favorable 

to El Malik regarding his potentially-underlying constitutional claims, the Veterans Court concluded that the 

instant petition was premature because El Malik currently has adequate alternative means to pursue his claims, 

including potential constitutional claims, in the VA other 

than seeking a writ of mandamus from the Veterans 

Court. Id. at *4.

On June 20, 2016, El Malik filed a motion for a panel 

decision. R.A. 6. The Veterans Court granted the motion 

but ordered that the single-judge order on June 13, 2016 

remains the decision of the Veterans Court. R.A. 6–7. 

Subsequently, El Malik requested a full-court review, 

which the Veterans Court denied. R.A. 8. Judge Kasold 

dissented, noting that Werden, which was critically discussed in the single-judge order, should have been analyzed in the panel decision, and that en banc review was 

warranted. R.A. 8–9. El Malik timely appealed from the 

decision of the Veterans Court. 
EL MALIK v. SHULKIN 5

DISCUSSION

We have limited jurisdiction to review decisions by 

the Veterans Court. See 38 U.S.C. § 7292. We have 

jurisdiction to review “all relevant questions of law, 

including interpreting constitutional and statutory provisions,” 38 U.S.C. § 7292(d)(1), but we lack jurisdiction to 

review challenges to “a factual determination” or to “a law 

or regulation as applied to the facts” except to the extent 

that the appeal presents a constitutional issue. 38 U.S.C.

§ 7292(d)(2). 

On appeal, El Malik maintains that a legal issue exists regarding the interpretation of 38 U.S.C. § 2105 and 

VA Manual M26-12. Pet. Br. 1–2. El Malik also makes 

constitutional arguments relying in part on Judge 

Kasold’s dissent from the Veterans Court’s denial of en 

banc review. Pet. Br. 1–2, 4–6. Finally, El Malik further 

argues that he lacks adequate alternative means to 

pursue his claims because following the prescribed VA 

appeals process would result in undue prejudice owing to 

the indefinite time frame for an administrative action. 

Pet. Br. 6–7.

The government makes several arguments in response. First, it argues that this court lacks jurisdiction 

to review the Veterans Court’s “factual findings” regarding availability of alternative means for relief and the 

court’s “application of the law on mandamus to the facts 

in this case.” Resp. Br. 12–13. The government also 

argues that no legal question is present because (1) 38 

U.S.C. § 2105 or VA Manual M26-12 do not provide El 

Malik with any legal rights, and nonetheless were not 

relied upon by the Veterans Court in its decision; and (2) 

the validity of Werden or any potential constitutional 

arguments are not directly before this court through this 

mandamus appeal. Resp. Br. 13–18. Finally, even if this 

court assumes jurisdiction, the dismissal of mandamus 

was correctly decided, the government argues, because El 
6 EL MALIK v. SHULKIN

Malik has alternative means for relief, namely, in the 

forms of (1) requesting additional funds through the SAH 

program, which actually had been expanded beyond what 

was mentioned in the Veterans Court’s decision; (2) 

providing arguments at the VA concerning why additional 

funds are warranted; and (3) proceeding with the appeal 

process to the VA Board regarding any adverse decisions 

at the VA. Resp. Br. 19–20. The government notes that 

the hardship for El Malik that may inherently result from 

the VA appeals process is not a reason to grant mandamus relief. Resp. Br. 20–21.

Mandamus relief is “a drastic one, to be invoked only 

in extraordinary situations.” Kerr v. U.S. Dist. Court, 426 

U.S. 394, 402 (1976) (citations omitted). A petitioner 

seeking a writ of mandamus must show (1) that he has 

“no other adequate means to attain the relief he desires”; 

(2) that his “right to issuance of the writ is clear and 

indisputable”; and (3) that “the writ is appropriate under 

the circumstances.” Cheney v. U.S. Dist. Court, 542 U.S. 

367, 380–81 (2004) (internal quotation marks and citations omitted). Furthermore, the issuance of the writ of 

mandamus is “in large part a matter of discretion with 

the court to which the petition is addressed.” Kerr, 426 

U.S. at 403 (citations omitted). 

As an initial matter, we do have jurisdiction to review 

the Veterans Court’s “decision whether to grant a mandamus petition that raises a non-frivolous legal question.” 

Beasley v. Shinseki, 709 F.3d 1154, 1158 (Fed. Cir. 2013); 

see also Lamb v. Principi, 284 F.3d 1378, 1382 (Fed. Cir. 

2002). In reviewing the Veterans Court’s mandamus 

decisions, “[w]e may not review the factual merits,” but 

“we may determine whether the petitioner has satisfied 

the legal standard for issuing the writ.” Beasley, 709 F.3d 

at 1158.

We agree with the Veterans Court that El Malik has 

failed to establish that he is entitled to the extraordinary 
EL MALIK v. SHULKIN 7

relief of mandamus. As noted by the Veterans Court, a 

claimant in El Malik’s situation generally should present

his constitutional arguments to the VA before presenting 

them to the Veterans Court. See Ledford v. West, 136 

F.3d 776, 780 (Fed. Cir. 1998). He did not do so here. 

Moreover, the Veterans Court held that El Malik failed to 

meet his burden to show that he is entitled to mandamus 

relief, in particular, that he lacked adequate alternative 

means for relief. The Veterans Court faithfully applied 

existing mandamus jurisprudence in deciding the present 

case, and we find no error in its doing so. 

El Malik’s arguments as to the inadequacy of the 

available VA appeals process fail. Although pursuing the 

prescribed VA appeals process may involve an uncertain 

time frame, such uncertainties do not amount to the type 

of undue prejudice that warrants granting mandamus. 

See Beasley, 709 F.3d at 1159; Lamb, 284 F.3d at 1383–

84. 

El Malik attempts to raise a legal issue by contending 

that the interpretations of 38 U.S.C. § 2105 and VA 

Manual M26-12 are contradictory. However, in denying 

the mandamus petition, the Veterans Court did not 

interpret any statute or regulation nor did it adopt the 

Secretary’s argument as to his underlying statutory 

interpretation. The Veterans Court did not, and did not 

need to, draw any legal conclusion concerning any alleged 

statutory contradiction because El Malik’s petition for 

mandamus relief was defective due to the existence of 

adequate alternative means for relief. See Cheney, 542 

U.S. at 380–81. Indeed, although El Malik raises concerns over possible legal error in statutory interpretation

by the VA or the Veterans Court, the disposition of the 

mandamus relief sought here does not rest on any particular interpretation of the statute or regulation pointed to

by El Malik, let alone on an erroneous interpretation of 

the statute or regulation. We thus find no error in the 

Veterans Court’s decision.
8 EL MALIK v. SHULKIN

Similarly, we find El Malik’s arguments relying on 

the existence of a dissent in the Veterans Court regarding

its precedent, Werden, inapposite. At its core, El Malik’s

complaint appears to center around the unsatisfactory 

work done, or not done, by the contractor and subsequent 

disbursements of the SAH escrow funds, which apparently left him with insufficient funds to finish the work on 

his home. However, El Malik is not directly seeking 

additional SAH funds or challenging the VA’s disbursements of the SAH funds through the prescribed appeals 

process, in which he could have squarely questioned 

Werden, at the VA and later in the Veterans Court. 

Regardless whether or not Werden was decided correctly 

by the Veterans Court, El Malik is not entitled to mandamus relief here. Mandamus is not available for a 

veteran to bypass other prescribed means for relief, such 

as seeking relief directly from the VA and appealing any 

adverse decision to the VA Board. See Lamb, 284 F.3d at 

1384 (citations omitted). 

Therefore, to the extent that any “non-frivolous legal 

question” was raised in El Malik’s mandamus petition, we 

conclude that the Veterans Court did not err in denying 

El Malik’s petition. 

CONCLUSION

We have considered El Malik’s other arguments but 

find them unpersuasive. For the foregoing reasons, we 

affirm the order of the Veterans Court denying the petition for a writ of mandamus.

AFFIRMED