Case: 19-1971    Document: 21     Page: 1   Filed: 05/13/2020




        NOTE: This disposition is nonprecedential.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 Pi-
 etsch.
                 ______________________

                  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, Wash-
 ington, DC, for respondent-appellee. Also represented by
 JOSEPH H. HUNT, ROBERT EDWARD KIRSCHMAN, JR., LOREN
 MISHA PREHEIM; MARTIE ADELMAN, BRIAN D. GRIFFIN, Of-
 fice of General Counsel, United States Department of Vet-
 erans Affairs, Washington, DC.
    Case: 19-1971     Document: 21     Page: 2     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 Ap-
     peals (“Board”) to issue a decision on his claim for an in-
     creased 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. Fi-
     nally, 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 sec-
     ond 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 gov-
     ernment 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 Ma-
     lik’s claim for an increased rating has now been denied. If
Case: 19-1971      Document: 21    Page: 3   Filed: 05/13/2020




 EL MALIK   v. WILKIE                                      3



 El Malik wishes to contest that determination, he may di-
 rectly 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 de-
 lays are wholly speculative. We recognize El Malik’s frus-
 tration 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 pro-
 ceeding, 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 de-
 nial 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 gov-
 ernment 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 extraordi-
 nary writs cannot be used as substitutes for appeals, even
 though hardship may result from delay and perhaps un-
 necessary trial” (quoting Banker’s Life & Cas. Co. v. Hol-
 land, 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
    Case: 19-1971     Document: 21       Page: 4     Filed: 05/13/2020




4                                                  EL MALIK   v. WILKIE



     attain the desired relief” preclude the grant of mandamus.
     See Veterans Court Decision, 2019 WL 1602008, at *1 (iden-
     tifying 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 preemp-
     tively 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) (single-
     judge 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, peti-
     tion, 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 ra-
     tional for its order). We see no abuse of discretion in the
     Veterans Court’s reliance on the earlier final decision and
Case: 19-1971      Document: 21    Page: 5   Filed: 05/13/2020




 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.
