NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________

RASHID EL MALIK,

Claimant-Appellant

v.

ROBERT WILKIE, SECRETARY OF VETERANS 

AFFAIRS,

Respondent-Appellee

______________________

2019-1971

______________________

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 18-7435, Judge Coral Wong Pietsch.

______________________

Decided: May 13, 2020

______________________

RASHID EL MALIK, Palos Verde's Estate, CA, pro se. 

 DANIEL S. HERZFELD, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, Washington, DC, for respondent-appellee. Also represented by 

JOSEPH H. HUNT, ROBERT EDWARD KIRSCHMAN, JR., LOREN 

MISHA PREHEIM; MARTIE ADELMAN, BRIAN D. GRIFFIN, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC. 

Case: 19-1971 Document: 21 Page: 1 Filed: 05/13/2020
2 EL MALIK v. WILKIE

 ______________________

Before LOURIE, LINN, and WALLACH, Circuit Judges.

PER CURIAM.

Rashid El Malik (“El Malik”) seeks review of the Court 

of Appeals for Veterans Claims’ (“Veterans Court”) denial 

of mandamus seeking to compel the Board of Veterans Appeals (“Board”) to issue a decision on his claim for an increased rating for his back disability. See Rashid El Malik 

v. Wilkie, 2019 WL 1602008, No. 18-7435 (Vet. App. 2019) 

(“Veterans Court Decision”). El Malik also seeks review of 

the denial of mandamus to resolve a dispute over a contract 

between the Department of Veterans Affairs (“VA”) and a 

contractor to provide accommodations to his home. Finally, El Malik seeks review of the denial of mandamus to 

compel the Veterans Court to waive the filing fee and lift 

the requirement that he file a motion for leave to file future 

petitions. Because the first issue is now moot, that part of 

El Malik’s appeal is dismissed. Because the Veterans 

Court did not abuse its discretion with respect to the second issue, that part of the appeal is affirmed. Because the 

final issue improperly seeks to collaterally attack a prior 

final decision by the Veterans Court, that part of his appeal 

is denied.

I

With respect to the first issue, we agree with the government that El Malik’s appeal is now moot because he has 

received the relief he sought. Monk v. Shulkin, 855 F.3d 

1312, 1316 (Fed. Cir. 2017) (“A case is said to lack an actual 

or concrete dispute where the relief sought by a plaintiff is 

satisfied or otherwise rendered moot.”). The Board already 

ordered the VA to provide a physical examination, the VA 

already held the examination in May of 2019, and El Malik’s claim for an increased rating has now been denied. If 

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EL MALIK v. WILKIE 3

El Malik wishes to contest that determination, he may directly appeal to the Veterans Court.

We see no merit to El Malik’s argument that the delay 

he seeks to redress will repeat and make it impossible for 

him to vindicate his rights. The VA has already taken the 

action he seeks to compel through mandamus. Further delays are wholly speculative. We recognize El Malik’s frustration with the substantial delay between his 2007 appeal 

to the Board seeking a higher rating and the Board’s 2017 

receipt and docketing of that appeal. His claim is now proceeding, however, and mandamus would provide no further 

remedy to expedite or secure his rights.

Because his writ is moot, we do not address El Malik’s 

argument about the legal standard applied by the Veterans 

Court or his potential entitlement to fees under the Equal 

Access to Justice Act.

For the foregoing reasons, El Malik’s appeal of the denial of his petition to order the VA to provide a physical

examination is dismissed.

II

With respect to the second issue, we agree with the government that mandamus is not appropriate to challenge 

the VA Regional Office’s (“RO”) November 2018 decision 

denying El Malik’s request for travertine tiles. El Malik’ s 

potential options for challenging the RO’s decision were to 

either file an appeal with the Board followed by a direct 

appeal to the Veterans Court, or to file an appeal with the 

Civilian Board of Contract Appeals (“CBCA”). See Lamb v. 

Principi, 284 F.3d 1378 (Fed. Cir. 2002) (“The extraordinary writs cannot be used as substitutes for appeals, even 

though hardship may result from delay and perhaps unnecessary trial” (quoting Banker’s Life & Cas. Co. v. Holland, 346 U.S. 379, 383 (1953))). El Malik did not appeal 

to the Board from the RO’s decision, and has, in fact, filed 

an appeal with the CBCA. These “alternative means to 

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4 EL MALIK v. WILKIE

attain the desired relief” preclude the grant of mandamus. 

See Veterans Court Decision, 2019 WL 1602008, at *1 (identifying conditions for the grant of mandamus (citing Cheney 

v. U.S. Dist. Ct., 542 U.S. 367, 380–81 (2004))).

We see no merit to El Malik’s assertion that pursuing 

an appeal would have been futile because the Board lacked 

jurisdiction to adjudicate a breach of contract. As correctly 

noted by the Veterans Court, El Malik was free to make his 

jurisdictional argument to the Board on appeal from the 

RO’s decision. Because El Malik has alternative means to 

challenge the RO’s decision with respect to the travertine 

tile issue, the Veterans Court did not abuse its discretion 

in denying mandamus. The Veterans Court’s denial of 

mandamus on the contract issue is thus affirmed.

III

El Malik also improperly seeks to collaterally attack a 

prior final decision by the Veterans Court, alleging that the 

Veterans Court violated his due process rights by preemptively denying waiver of the filing fee and requiring him to 

file a motion for leave to file future petitions. See El Malik 

v. McDonald, 2016 WL 5462684 (Vet. App. 2016) (singlejudge order), aff’d as the decision of the court, 2016 WL 

7029302 (Vet. App. 2016) (per curiam). El Malik did not 

appeal that decision, and it thereafter became final. See 38 

U.S.C. § 7291(a) (“A decision of the United States Court of 

Appeals for Veterans Claims shall become final upon the 

expiration of the time allowed for filing, under section 7292 

of this title, a notice of appeal from such decision, if no such 

notice is duly filed within such time.”). See also U.S. Vet. 

App. R. 38 (“If the Court determines that an appeal, petition, motion, or other filing is frivolous, it may . . . enter 

such order as it deems appropriate, to include sanctions.”); 

El Malik, 2016 WL 5462684, at *2–3 (explaining the rational for its order). We see no abuse of discretion in the 

Veterans Court’s reliance on the earlier final decision and 

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EL MALIK v. WILKIE 5

no merit to El Malik’s argument that his due process rights 

were violated. That part of his appeal is therefore denied.

DISMISSED IN PART, AFFIRMED IN PART, AND

DENIED IN PART

COSTS

No costs.

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