El Malik v. McDonald

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RASHID EL MALIK,
Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2015-7060
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 14-656, Judge Mary J. Schoelen.
______________________
Decided: July 7, 2015
______________________
RASHID EL MALIK, Palos Verdes Estate, CA, pro se.
ERIC JOHN SINGLEY, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent-appellee. Also represent-
ed by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,
FRANKLIN E. WHITE, JR.; DAVID J. BARRANS, MARTIN
JAMES SENDEK, Office of General Counsel, United States
Department of Veterans Affairs, Washington, DC.
______________________
2 EL MALIK v. MCDONALD
Before NEWMAN, O’MALLEY, and CHEN, Circuit
Judges.
PER CURIAM.
Veteran Rashid El Malik petitions for review of the
Court of Appeals for Veterans Claims (Veterans Court)
order denying his petition for writ of mandamus. El
Malik v. McDonald, No. 14-0656, 2014 WL 4248122 (Vet.
App. Aug. 28, 2014) (Order). In his underlying claim, Mr.
El Malik seeks a disability rating for a left wrist condition
and an additional allotment of Special Monthly Compen-
sation (SMC) due to Aid and Attendance (A&A). Because
we agree that Mr. El Malik failed to demonstrate that he
lacks or lacked alternative means to obtain relief, we
affirm in part. And because Mr. El Malik’s remaining
arguments fall outside our jurisdiction, we dismiss in
part.
I. BACKGROUND
Mr. El Malik served on active duty in the U.S. Army
from January 1968 to June 1969. The Department of
Veterans Affairs (VA) has since determined that Mr. El
Malik is partially or fully disabled due to several service-
connected conditions, including separate determination
ratings of 100 percent disability for post-traumatic stress
disorder since September 1991, and loss of effective use of
both legs due to service connected bilateral knee replace-
ments since September 2003. El Malik v. Shinseki, 555 F.
App’x 986, 988–89 (Fed. Cir. 2014) (listing several service-
connected disabilities for which Mr. El Malik was receiv-
ing benefits); Respondent’s Appendix (R.A.) 186–187
(rating decisions from the VA Los Angeles Regional
Office). In May 2006, the Board of Veterans’ Appeals
(Board) awarded Mr. El Malik A&A at the “n and a half”
rate as a result of his combined disabilities. El Malik, 555
F. App’x at 988–91 (finding no legal error in the Veterans
Court’s affirmance of the Board’s decision to grant SMC at
the intermediate “n and a half” rate).
EL MALIK v. MCDONALD 3
After the Board’s May 2006 decision, Mr. El Malik re-
quested from the VA Regional Office (RO) an increased
rating for his previously-rated low back strain, service
connection for a left wrist condition, and an additional
allowance for A&A. In January 2007, the RO issued a
decision that declined to increase Mr. El Malik’s rating for
his low back strain, denied service connection for his left
wrist, and denied additional A&A. Mr. El Malik appealed
the RO’s decision to the Board on September 28, 2007.
The Board sent a letter to Mr. El Malik on October 11,
2007, stating that his appeal had been received.
On February 28, 2014, Mr. El Malik filed a petition
for writ of mandamus at the Veterans Court, asking the
Veterans Court to compel the VA to act on his claims for a
left wrist disability and additional A&A. Order at *1.
The Veterans Court ordered the Secretary of Veterans
Affairs (Secretary) to file a response. Id.Regarding Mr. El Malik’s left wrist claim, the Secre-
tary acknowledged that Mr. El Malik’s appeal had not yet
been resolved by the Board because his file had been lost
after being transferred among various VA offices on
numerous occasions. Id. The VA then reconstructed the
missing portions of Mr. El Malik’s file and, on August 4,
2014, the Secretary notified the Veterans Court that Mr.
El Malik was awarded service connection for a left wrist
disability at a 10 percent disability rating effective June
20, 2006, and at a 40 percent disability rating effective
July 17, 2014. Id. at *2. The Veterans Court then held
that mandamus was not warranted for Mr. El Malik’s left
wrist claim, holding that it “need not retain jurisdiction
. . . because he can now pursue his claim by appealing the
rating decision to the Board.” Id. at *3 (citing Lamb v.
Principi, 284 F.3d 1378, 1384 (Fed. Cir. 2002) (noting that
a petition is not a substitute for an appeal)).
Regarding Mr. El Malik’s additional A&A claim, the
Secretary notified the Veterans Court that a July 2012
4 EL MALIK v. MCDONALD
rating decision had awarded him additional A&A effective
June 23, 2009. Id. at *1. The Veterans Court then or-
dered Mr. El Malik to show cause why his petition should
not be dismissed with regard to that claim. Id. at *2. Mr.
El Malik responded that he was entitled to additional
A&A as of 2002. Id. The Veterans Court held that man-
damus was not warranted for Mr. El Malik’s additional
A&A claim because the proper adjudication of his claim
was to appeal (1) the 2006 Board decision that found Mr.
El Malik did not meet the criteria for additional A&A, (2)
the 2007 VA rating decision that again denied additional
A&A, or (3) the 2012 VA rating decision that granted
additional A&A back to June 23, 2009. Id. at *3
Mr. El Malik appeals the decision of the Veterans
Court.
II. DISCUSSION
A
Our jurisdiction to review decisions of the Veterans
Court is limited by statute. Guillory v. Shinseki, 603 F.3d
981, 986 (Fed. Cir. 2010). We have jurisdiction over “all
relevant questions of law, including interpreting constitu-
tional and statutory provisions.” 38 U.S.C. § 7292(d)(1).
We lack jurisdiction over any “challenge to a factual
determination” or “challenge to a law or regulation as
applied to the facts of a particular case” absent a constitu-
tional issue. 38 U.S.C. § 7292(d)(2). We set aside a
Veterans Court decision only if it is “arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance
with law. . . .” 38 U.S.C. § 7292(d)(1)(A).
To obtain mandamus, the petitioner must show (1)
that he has a clear legal right to relief, (2) that there are
no adequate alternative legal channels through which the
petitioner may obtain that relief, and (3) that the grant of
mandamus relief is appropriate under the circumstances.
See Cheney v. U.S. Dist. Court, 542 U.S. 367, 380–81
EL MALIK v. MCDONALD 5
(2004); Hargrove v. Shinseki, 629 F.3d 1377, 1378 (Fed.
Cir. 2011). Moreover, the issuance of a writ of mandamus
is “in large part a matter of discretion with the court to
which the petition is addressed.” Kerr v. U.S. Dist. Court
for N. Dist. of Calif., 426 U.S. 394, 403 (1976) (citations
omitted).
B
As a preliminary matter, the government contends
that we must dismiss this appeal for lack of jurisdiction.
We disagree in part. The government’s position on ap-
peals of mandamus denials has already been rejected by
this court’s decision in Lamb, 284 F.3d at 1381. In re-
sponse to a similar jurisdictional argument advanced by
the government in this case, this Court determined that
although Congress intended the Veterans Court to be the
final arbiter of all factual issues, “[t]here is no indication,
however, that in thus limiting our jurisdiction, Congress
intended to insulate from judicial review that court’s
ruling on mandamus petitions.” Id. at 1382. This Court
has thus consistently exercised jurisdiction over manda-
mus petitions that raise legal questions within our juris-
diction. See, e.g., Beasley v. Shinseki, 709 F.3d 1154, 1158
(Fed. Cir. 2013); Lamb, 284 F.3d at 1381–82; Cox v. West,
149 F.3d 1360, 1365–66 (Fed. Cir. 1998). In doing so,
“[w]e may not review the factual merits of the veteran’s
claim, but we may determine whether the petitioner has
satisfied the legal standard for issuing the writ.” Beasley,
709 F.3d at 1158.
C
Mr. El Malik argues that the September 28, 2007, ap-
peal to the Board for additional A&A remains unresolved
because the July 2012 VA rating decision disposed of a
completely separate claim for additional A&A. Mr. El
Malik contends that his claim in the 2007 appeal related
to his double-knee replacement in 2004, whereas the 2012
rating decision resolved a different claim related to “the
6 EL MALIK v. MCDONALD
loss of use of his third extremity.” Petitioner’s Brief (Pet.
Br.) at 5. The record does not support Mr. El Malik’s
contention. The 2007 appeal did not relate to Mr. El
Malik’s double-knee replacement. Instead, the appeal
related to the denial of additional A&A “on the basis that
the petitioner was bedridden because of . . . right wrist
derangement,” i.e., the loss of use of his third extremity.
Order at *3; see R.A. 138–48 (the January 2007 VA rating
decision). The 2012 rating decision that granted addi-
tional A&A back to June 23, 2009, considered the evi-
dence and arguments that were in front of the Board in
2007, and determined that the effective date of June 23,
2009, corresponded to the date of “post traumatic right
wrist derangement.” R.A. 182–89. Mr. El Malik’s claim
for additional A&A related to his double-knee replace-
ment in 2004 was resolved by the Board in a May 2006
decision, which awarded Mr. El Malik “n and a half” rate
as a result of his combined disabilities. El Malik, 555 F.
App’x at 988, 991 (finding no legal error in the Veterans
Court’s decision that the Board did not commit clear and
unmistakable error in denying additional compensation to
Mr. El Malik). The record, therefore, shows that Mr. El
Malik’s September 28, 2007, appeal to the Board for
additional A&A was resolved by the VA in July 2012. As
the Veterans Court noted, Mr. El Malik offered no evi-
dence that he appealed the 2012 rating decision, and a
writ of mandamus is not a substitute for an appeal.
Order at *3.
Mr. El Malik also fails to demonstrate that he lacks
alternative means to obtain relief for his left wrist claim.
Mr. El Malik contends that he appealed his left wrist
rating decision “within days” of the August 4, 2014, VA
rating decision, but the Board had not yet addressed his
left wrist appeal as of the filing of his brief to this Court.
Id. at 2. We once again note that mandamus is not a
substitute for an appeal.
EL MALIK v. MCDONALD 7
Mr. El Malik also argues that because the VA only of-
fered an apology for the seven-year delay, denying man-
damus will “send the incorrect signal and cause more
delays in veteran’s disability claims.” Pet. Br. at 3. While
we are sympathetic to Mr. El Malik’s grievance, in this
case we defer to the Veterans Court discretion in refusing
to issue mandamus. See Kerr, 426 U.S. at 403. We there-
fore hold that Mr. El Malik has not shown that manda-
mus is warranted as a matter of law.
D
Mr. El Malik argues that the Veterans Court failed to
order the VA to adjudicate his claim for an increased
rating for his previously-rated low back strain, which was
part of his September 28, 2007, appeal to the Board. Mr.
El Malik admits that his low back strain claim was not
part of his petition for writ of mandamus, but asserts that
he notified the Veterans Court of the claim after review-
ing the Secretary’s response. Mr. El Malik also asserts
that, after the Veterans Court issued its decision on his
left wrist claim and additional A&A claim, he filed a
motion for panel review on the two claims.
The record indicates that Mr. El Malik’s low back
strain claim was not properly in front of the Veterans
Court. Mr. El Malik first mentioned his low back strain
in one sentence of his April 2014 reply to the Veterans
Court. R.A. 88 (“Mr. Gipe concluded . . . the folder was
transferred to the [Board] on March 31, 2014, with no
decision on the left wrist, back, and Aid and Attendance
(A&A).” (emphasis added)). This sentence merely sum-
marized the declaration submitted by the Secretary in
support of its response to the Veterans Court, in which
the declarant enumerated the portions of the claims file
“pertinent to the issue of service connection for a left wrist
disability.” R.A. 151. Nothing in this sentence or in Mr.
El Malik’s reply, when liberally construed, can reasonably
be interpreted as requesting the Veterans Court to add
8 EL MALIK v. MCDONALD
his low back strain claim to his petition. Moreover, with
limited exceptions not relevant here, Mr. El Malik cannot
raise new issues in his reply brief. Jackson v. Nicholson,
124 F. App’x 646, 649 (Fed. Cir. 2005) (“It is a general
rule of appellate procedure that an appellant waives
issues or arguments raised for the first time in a reply
brief.” (citations omitted)).
We similarly refuse to find that Mr. El Malik’s motion
for reconsideration of the Veterans Court’s denial of
mandamus properly put his low back strain claim in front
of the Veterans Court for adjudication.
E
We have examined Mr. El Malik’s remaining argu-
ments and find them beyond the scope of our jurisdiction.
For example, Mr. El Malik challenges the Veterans
Court’s decision not to impose sanctions against the VA
under 38 U.S.C. § 7265. The Veterans Court declined to
sanction the VA because it determined that “there is no
evidence of noncompliance with the rule or order and,
once the Secretary recognized the oversight, the RO and
Secretary were reasonably diligent and energetic in
attempting to accomplish their duty.” Order at *3. The
Veterans Court’s determination is factual in nature, and
thus unreviewable by this Court.
Mr. El Malik also asserts the Veterans Court deprived
him of a property interest without due process of law
when it accepted the Secretary’s statements that Mr. El
Malik’s claims have been resolved. This assertion merely
places a “due process” label on the merits of the claim,
and is not a separate constitutional contention. See Helfer
v. West, 174 F.3d 1332, 1335 (Fed. Cir. 1999) (“[The]
characterization of that question as constitutional in
nature does not confer upon us jurisdiction that we oth-
erwise lack.”). As explained above, we see no error in the
Veterans Court’s conclusion that the VA had resolved Mr.
El Malik’s claims.
EL MALIK v. MCDONALD 9
Finally, Mr. El Malik requests the “opportunity to file
a petition for attorney fees, costs and expenses in this
action, as required by 28 U.S.C. § 2412(d)(1)(B),” which is
commonly referred to as The Equal Access to Justice Act
(EAJA). Pet. Br. at 8. EAJA fees and expenses, however,
must be applied for “within thirty days of final judgment
in the action.” 28 U.S.C. § 2412(d)(1)(B). As there has
been no final decision in the instant appeal, Mr. El Ma-
lik’s request is premature. We also caution Mr. El Malik
that, once the instant appeal becomes final, EAJA fees are
not recoverable by pro se litigants. Groves v. Shinseki,
541 F. App’x 981, 984 (Fed. Cir. 2013) (also denying EAJA
expenses for time spent as an “expert witness,” for “com-
puter/legal research,” and for “photocopying expenses”).
Accordingly, we hold that the Veterans Court did not
abuse its discretion or otherwise commit legal error in
denying Mr. El Malik’s petition for writ of mandamus.
We also hold that Mr. El Malik’s remaining claims are
outside of this Court’s jurisdiction and are dismissed.
CONCLUSION
We affirm the order of the Veterans Court denying the
petition for mandamus and dismiss in part Mr. El Malik’s
appeal.
AFFIRMED IN PART and DISMISSED IN PART
COSTS
No costs.