NOTE: This disposition is nonprecedential.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 Pietsch.

-------------------------------------------------

RASHID EL MALIK,

Claimant-Appellant

v.

DENIS MCDONOUGH, SECRETARY OF 

VETERANS AFFAIRS,

Respondent-Appellee

______________________ 

2023-2279

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2 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 Justice, Washington, DC, for respondent-appellee. Also represented by BRIAN M. BOYNTON, PATRICIA M. MCCARTHY,

LOREN MISHA PREHEIM; BRIAN D. GRIFFIN, JONATHAN 

KRISCH, Office of General Counsel, United States Department 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 (Veterans 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 requested the same relief as his first petition. We hold that 

the Veterans Court did address Mr. El Malik’s finality argument, 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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EL MALIK v. MCDONOUGH 3

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 entitlement to: (1) purchase new hardwood floors, (2) install automatic 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 various other equipment purchases and home modifications. 

SAppx. 66–69. In particular, the Board ordered a medical 

opinion concerning the necessity of the following accommodations: 

(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) installation 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 decision.

1 Citations to “SAppx.” refer to the Appendix submitted by the government in Appeal No. 23-1684.

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4 EL MALIK v. MCDONOUGH

The modification project for Mr. El Malik’s home 

started in June 2018. SAppx. 44. By May 2022, the following modifications were completed: (1) installation of an elevator 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 openers on the front double doors, master bathroom exit door, 

and elevator doors; (7) enlargement of the master bathroom; (8) installation of hardwood floors in the master bedroom, 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) replacement 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 directing the VA to implement the Board’s April 2022 decision. SAppx. 22–25. Mr. El Malik alleged that the VA 

refused to comply with the Board’s April 2022 decision, resulting 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 mandamus was still pending, the VA requested clarification

2 The allegedly false statement recites: “None of the 

below [modifications] have actually been completed.” Appellant’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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EL MALIK v. MCDONOUGH 5

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 intervene in this “violation of his due process.” See Petitioner’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 twostory addition was appropriate given the denial and remand of other items sought by Mr. El Malik, and that seeking such clarification was not a refusal to follow an order. 

In addressing Mr. El Malik’s allegation of unreasonable delay, 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 Telecomms. 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 ordered 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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6 EL MALIK v. MCDONOUGH

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 decision “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 unreasonably delayed execution of the order and that the VA’s 

request for clarification violates the laws relating to the finality of a Board decision. The Veterans Court dismissed 

the second petition as duplicative of Mr. El Malik’s first petition. 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 jurisdiction 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. chapters 37 and 72.”

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EL MALIK v. MCDONOUGH 7

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 Appellant’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 finality—i.e., that the VA’s request for clarification was an attempt 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 decision 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 example, “[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 remanded by the Board could be part of a two-story addition 

to the rear of the home.” SAppx. 10. Insofar as Mr. El Malik 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 violated 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 argument in one of his many other appeals before us. Appellee’s 

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8 EL MALIK v. MCDONOUGH

Malik arguing that “[t]he Veterans Court accepted the Respondent representation that the components were completed 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 considers 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, Appeal 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 issues. For example, this court has sanctioned pro se appellants 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 requiring individuals to seek leave from the court before filing 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 9

2279 Appellant’s Br. 3. Mr. El Malik argues “that veterans 

have a protected property interest that requires fair adjudication 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 jurisdiction 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 appeals.

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 vehicle 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 challenge to the Board decision. 

CONCLUSION

We have considered Mr. El Malik’s remaining arguments and find them unpersuasive. We hold that the Veterans 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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10 EL MALIK v. MCDONOUGH

Court’s determinations, we affirm in part and dismiss in 

part. 

AFFIRMED-IN-PART AND DISMISSED-IN-PART

COSTS

No costs.

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