       NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
              __________________________

                 RASHID EL MALIK,
                  Claimant-Appellant,
                           v.
 ERIC K. SHINSEKI, SECRETARY OF VETERANS
                  AFFAIRS,
              Respondent-Appellee.
              __________________________

                      2011-7201
              __________________________

   Appeal from the United States Court of Appeals for
Veterans Claims in case no. 11-2110, Judge Lawrence B.
Hagel.
              __________________________

               Decided: February 13, 2012
              ___________________________

    RASHID EL MALIK, of Palos Verde’s Estate, California,
pro se.

    STEVEN M. MAGER, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent-appellee.
With him on the brief were TONY WEST, Assistant Attor-
ney General, JEANNE E. DAVIDSON, Director, and
EL MALIK   v. DVA                                        2


FRANKLIN E. WHITE, JR., Assistant Director. Of counsel on
the brief was DAVID J. BARRANS, Deputy Assistant Gen-
eral Counsel, United States Department of Veterans
Affairs, of Washington, DC.
               __________________________

    Before PROST, MAYER, and REYNA, Circuit Judges.
PER CURIAM.
     Rashid El Malik (“El Malik”) appeals the decision of
the United States Court of Appeals for Veterans Claims’
(“Veterans Court”) denying his petition for writ of man-
damus, which sought to have the Veterans Court direct
the Department of Veterans Affairs (“VA”) to accept and
grant his application for accreditation as an attorney
authorized to represent claimants for VA benefits. Be-
cause we conclude that the Veterans Court correctly
denied El Malik’s petition as failing to present a claim to
an indisputable right to such extraordinary relief, we
affirm.
                    I.   BACKGROUND
    The Secretary of Veterans Affairs “may recognize any
individual as an agent or attorney for the preparation,
presentation, and prosecution of claims under laws ad-
ministered by the Secretary.” 38 U.S.C. § 5904(a). The
VA may require that such individuals establish good
moral character and reputation, as well as demonstrate
qualifications and competency to represent claimants, as
prerequisites to accreditation. Id. The VA regulations
further specify the standards for accreditation of attor-
neys. See, e.g., 38 C.F.R. § 14.629(b). Among other
things, the regulations require applicants for accredita-
tion to disclose information regarding any criminal back-
ground. Id. § 14.629(b)(2)(iv).
3                                           EL MALIK   v. DVA


    After notice and the opportunity for a hearing, the VA
may “suspend or exclude from further practice before the
Department” any previously accredited attorney who has
“violated or refused to comply with any of the laws admin-
istered by the Secretary, or with any of the regulations or
instructions governing practice before the Department . . .
.” 38 U.S.C. § 5904(b)(4). The regulations provide that
accreditation may be cancelled if it is established by clear
and convincing evidence that the attorney has violated
any applicable VA law, including proof that the attorney
has “[d]emand[ed] or accept[ed] unlawful compensation
for preparing, presenting, prosecuting, or advising or
consulting, concerning a claim . . . .”          38 C.F.R.
§ 14.633(c)(3).
    El Malik’s accreditation to represent claimants before
the VA was cancelled on April 28, 2005 based on charges
that he knowingly presented false information to the VA
and accepted unlawful compensation in exchange for his
representation. In particular, it was found that El Malik
stated on his application for accreditation that he had
never been a defendant in a criminal proceeding, when in
fact he was a defendant in several criminal cases. El
Malik was also found to have charged fees for his services
prior to the Board of Veterans Appeals’ (“BVA”) final
decision in certain matters he was handling, in violation
of 38 U.S.C. § 5904(c)(1) (2005) which prohibited such a
practice. 1


    1   38 U.S.C. § 5904(c)(1) was subsequently amended
in 2006 to prohibit the charging of fees for services ren-
dered “before the date on which a notice of disagreement
is filed with respect to a case,” replacing the existing
language of “before the date on which the Board of Veter-
ans’ Appeals made a final decision in a case.” Veterans
Benefits, Health Care, and Information Technology Act of
2006, P.L. 109-461, 120 Stat. 3403, 3407 (December 22,
EL MALIK   v. DVA                                          4


    Both the BVA and the Veterans Court upheld the
cancellation of El Malik’s accreditation, rejecting El
Malik’s arguments on the merits of the charges against
him, as well as his contention that the cancellation vio-
lated his constitutional right to due process. El Malik
then appealed to this court. Pursuant to 38 U.S.C.
§ 7292(d)(2), we did not have jurisdiction to examine the
merits of El Malik’s termination, but we rejected his due
process arguments. El Malik v. Shinseki, 374 Fed. Appx.
980 (Fed. Cir. 2010). Upon a careful review of the record,
the alleged due process violations—that the VA postponed
his hearing, failed to communicate with his counsel, and
appointed a non-VA hearing officer—were found to be
“unconvincing,” and in any event El Malik failed to show
any prejudice or harm as a result of the alleged violations.
Id. at 981. El Malik’s cancellation of his accreditation
thus became final.
    El Malik then filed a new application for accreditation
on September 27, 2010. On April 8, 2011, the VA re-
turned El Malik’s application to him along with a letter
explaining that the VA would not reinstate his accredita-
tion. The letter noted that the VA has the authority to
permit reinstatement of attorneys whose accreditations
are cancelled for receipt of unlawful fees under 38 U.S.C.
§ 5904(c)(3)(C), which provides as follows:
   If the Secretary . . . suspends or excludes from fur-
   ther practice before the Department any agent or
   attorney who collects or receives a fee in excess of
   the amount authorized under this section, the
   suspension shall continue until the agent or at-
   torney makes full restitution to each claimant
   from whom the agent or attorney collected or re-

2006). It is undisputed that the pre-2006 law governed
when El Malik engaged in the conduct at issue.
5                                           EL MALIK   v. DVA


    ceived an excessive fee. If the agent or attorney
    makes such restitution, the Secretary may rein-
    state such agent or attorney under such rules as
    the Secretary may prescribe.
The letter further noted that the VA has discretion as to
whether and under what circumstances such reinstate-
ment should occur, even if the required restitution has
been made. A11-12 (quoting 38 U.S.C. § 501(a) (“The
Secretary has authority to prescribe all rules and regula-
tions which are necessary or appropriate to carry out the
laws administered by the Department . . . .”)). While the
VA opted to permit reinstatement for suspended accredi-
tations under 38 C.F.R. § 13.633(g), the VA “decided that
an individual whose accreditation has been cancelled
should no longer be permitted to represent claimants
before the Department,” and so there were no rules pre-
scribed for reinstatement of such individuals. Id.
    El Malik filed a petition for a writ of mandamus with
the Veterans Court, alleging that he was improperly
denied reinstatement of his accreditation based on his
new application.       El Malik’s petition relied on
§ 5904(c)(3)(C), which he contended required his applica-
tion to be considered. He also pointed to regulations
existing in 2005 providing that the records of cases where
accreditations are terminated will be maintained in the
General Counsel's office for three years from the date of
the final termination decision. 53 Fed. Reg. 52416 (Dec.
28, 1988) (revising 38 C.F.R. § 14.633(g)); 76 Fed. Reg.
58009, 58012-13 (October 12, 2007) (again revising
§ 14.633 to remove the three-year maintenance of termi-
nation records provision). El Malik took the regulations
to mean that after three years he would be entitled to
reinstatement. He further contended that the VA find-
ings relied upon to disaccredit him in 2005 could not be
used to reject his new application for accreditation, under
EL MALIK   v. DVA                                         6


principles of res judicata and collateral estoppel. Finally,
El Malik alleged that the VA’s failure to reinstate him
violated the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution.
     The Veterans Court found that El Malik failed to
meet the requirements for issuance of a writ of manda-
mus: (1) that the party seeking issuance of the writ has no
other adequate means to attain the desired relief, which
ensures that the writ is not utilized to circumvent the
normal appeals process; (2) that the right to issuance of
the writ is “clear and indisputable;” and (3) that the court
is satisfied in its discretion that granting the writ is
appropriate under the circumstances. A1-2 (citing Cheney
v. U.S. Dist. Court, 542 U.S. 367, 380-81 (2004)). The
Veterans Court viewed El Malik’s petition as relitigating
the same issues raised in his earlier appeal, and cau-
tioned him not to raise issues before this court that have
already been decided. Because El Malik’s claims were
believed to have already been adjudicated and rejected, El
Malik’s petition was dismissed as unable to satisfy the
stringent criteria for a writ or mandamus. This appeal
followed.
                     II. DISCUSSION
    We have jurisdiction over the issue of whether the
Veterans Court properly denies a petition for writ of
mandamus. 28 U.S.C. § 1651(a); Cox v. West, 149 F.3d
1360, 1363-64 (Fed. Cir. 1998); see also Lamb v. Principi,
284 F.3d 1378, 1382 (Fed. Cir. 2002). “The remedy of
mandamus is a drastic one, to be invoked only in extraor-
dinary situations.” Kerr v. U.S. Dist. Court, 426 U.S. 394,
402 (1976). Accordingly, because “[i]ssuance of the writ is
in large part a matter of discretion with the court to
which the petition is addressed,” id. at 403, we review the
7                                           EL MALIK   v. DVA


Veterans Court’s denial of a petition for a writ of manda-
mus for abuse of discretion. See Lamb, 284 F.3d at 1384.
     As a threshold matter, the Veterans Court mischarac-
terized the arguments made in El Malik’s petition for a
writ of mandamus. The petition does not seek to reliti-
gate the 2005 cancellation of El Malik’s accreditation.
Rather, it seeks to compel the VA to reinstate his accredi-
tation based on his new application filed in 2010. A4
(seeking, as specified under “RELIEF SOUGHT” heading,
“[r]einstatement of accreditation pursuant to 38 U.S.C. §
5904(c)(3)(C)”). The issues and arguments made by El
Malik are plainly distinct from those previously raised, as
he is now relying primarily on the text of § 5904(c)(3)(C)
and the three-year record maintenance regulations in
effect in 2005 to assert that his new application must be
considered by the VA even though his accreditation was
previously cancelled.
     Nonetheless, the Veterans Court’s mischaracteriza-
tion of El Malik’s argument was harmless because he is
not entitled to mandamus relief under his theory. El
Malik’s theory on appeal may be essentially expressed as
follows:
    (1)    The VA has no rules or procedures in place
    for accreditation of attorneys whose prior accredi-
    tations were cancelled—rules and procedures ex-
    ist only to reinstate “suspended” attorneys;
    (2)   The regulations in effect in 2005 provided
    that the record of El Malik’s 2005 accreditation
    cancellation would be maintained for only three
    years, making El Malik’s cancellation in fact only
    a three year suspension;
    (3)   El Malik’s new application for accreditation
    was filed in 2010, more than three years after the
EL MALIK   v. DVA                                         8


   2005 decision to “cancel” his accreditation, but due
   to the absence of rules and procedures no formal
   examination or appealable denial of his applica-
   tion was made—it was simply returned to him;
   and
   (4)   Section 5904(c)(3)(C) imposes an obligation
   on the VA to consider an application for accredita-
   tion by formerly suspended practitioners;
   (5)    Therefore, El Malik’s new application for
   accreditation should be granted, but he has no
   avenue for relief before the VA, and so a writ of
   mandamus is necessary to direct the VA to proc-
   ess his application.
We find El Malik’s argument to be unpersuasive for two
reasons.
    First, the regulations in effect in 2005 provided only
that the records of El Malik’s cancellation proceedings
“will be maintained in the General Counsel's office for 3
years.” 53 Fed. Reg. 52416 (Dec. 28, 1988) (revising 38
C.F.R. § 14.633(g)). This regulation does not deem all
cancellations mere three-year suspensions, but simply
prescribes rules for recordkeeping. The VA regulations
carefully differentiate between provisions that apply to
suspension and those that apply to cancellation. Compare
38 U.S.C. §§ 14.633(b),(c),(d) (2012) (providing for various
instances when accreditation “shall be canceled”) with id.
§ 14.633(g) (“The General Counsel may suspend the
accreditation of a [practitioner] under paragraphs (b), (c),
or (d) of this section, for a definite period or until the
conditions for reinstatement . . . are satisfied.”). We
would be remiss to muddle such distinctions by reading a
recordkeeping provision that is silent as to the effect of
the expiration of the three-year period, as one that some-
9                                           EL MALIK   v. DVA


how converts a cancelled accreditation into a mere sus-
pension.
    Second, § 5904(c)(3)(C) does not require the VA to re-
accredit any suspended practitioners, but only permits
such action at the VA’s discretion, providing that “the
Secretary may reinstate such agent or attorney under
such rules as the Secretary may prescribe.” Even if the
VA elects to permit such re-accreditation, § 5904(c)(3)(C)
expressly applies only to suspensions due to unlawful fee
collection, and requires that the suspension “shall con-
tinue until the agent or attorney makes full restitution to
each claimant from whom the agent or attorney collected
or received an excessive fee.” We see no evidence that El
Malik has undertaken the prerequisite restitution.
    Because the above discussion dispels the possibility of
any “clear and indisputable” right to the relief requested
by the petition, Cheney, 542 U.S. at 380-81, we agree with
the Veterans Court—albeit on different grounds—that a
writ of mandamus is inappropriate in these circum-
stances.
                     III. CONCLUSION
   For the foregoing reasons, the judgment of the
Veterans Court is
                      AFFIRMED
                          COSTS
    No costs.
