El Malik v. Shulkin, 684 F. App'x 961

Background

El Malik, a veteran, alleged the VA improperly disbursed Special Adaptive Housing (SAH) escrow funds to a contractor (BNS) that lacked permits, ignored stop-work orders, and abandoned the project, leaving insufficient funds to finish modifications for his wheelchair.
He sought a writ of mandamus in the U.S. Court of Appeals for Veterans Claims asking the court to (1) clarify an alleged conflict between 38 U.S.C. § 2105 and VA Manual M26-12, ch. 8, (2) remit misused funds to the escrow account, and (3) restore his position prior to the alleged misuse.
The Secretary responded that equitable relief had been denied administratively, that the statutory provision cited (38 U.S.C. § 2105) does not create the asserted government interest in the residence, and that El Malik’s remedy was to pursue contract or other claims in state court or follow VA administrative appeals.
The Veterans Court denied mandamus, holding it lacked jurisdiction to review the manner of SAH disbursements under Werden v. West but also concluding that, even assuming jurisdiction, mandamus was improper because (a) it could not provide the equitable relief sought and (b) El Malik had adequate alternative means to pursue relief through the VA processes.
El Malik sought panel and en banc review; the Veterans Court left the single-judge denial intact and denied en banc review. El Malik appealed to the Federal Circuit.
The Federal Circuit affirmed, holding that mandamus is extraordinary relief, El Malik failed to show lack of adequate alternatives, and any statutory or precedent disputes did not entitle him to mandamus relief here.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does the Veterans Court have jurisdiction to review VA SAH disbursement decisions?	El Malik argued a legal question exists about §2105 vs VA Manual M26-12 and sought mandamus review.	Government argued jurisdiction is limited and Werden bars review of SAH disbursement manner; this is a matter for the VA/state courts.	Court accepted that jurisdiction to review non-frivolous legal questions exists generally but found mandamus was not warranted here; affirmed denial.
Are VA administrative and appeals processes inadequate so as to require mandamus?	El Malik argued VA appeals would take indefinite time and thus are inadequate.	Government said VA has available administrative remedies (request funds, present arguments, pursue Board appeals) and timing uncertainty is not sufficient.	Held that alternative means exist and timing uncertainty does not justify mandamus.
Do §2105 and VA Manual M26-12 conflict creating a clear legal right to relief?	El Malik claimed a contradiction that affects VA duties and his rights.	Government and court said any statutory interpretation dispute was not necessary to resolve because adequacy of alternatives defeated the mandamus petition.	Court refused to decide a statutory conflict; found no error in denying mandamus without resolving the alleged conflict.
Did petitioner meet the mandamus standard (no other adequate means; clear right; appropriate relief)?	El Malik contended his right was clear and extraordinary relief warranted.	Government argued petitioner failed all mandamus prongs and mandamus is discretionary and drastic.	Held petitioner failed to show lack of alternative means; mandamus relief denied and decision affirmed.

Key Cases Cited

Kerr v. United States District Court, 426 U.S. 394 (U.S. 1976) (mandamus is drastic, for extraordinary situations)
Cheney v. United States District Court, 542 U.S. 367 (U.S. 2004) (mandamus prerequisites and discretionary nature of writ)
Beasley v. Shinseki, 709 F.3d 1154 (Fed. Cir. 2013) (Federal Circuit reviews Veterans Court mandamus denials raising non-frivolous legal questions)
Lamb v. Principi, 284 F.3d 1378 (Fed. Cir. 2002) (mandamus not available to bypass prescribed VA remedies)
Ledford v. West, 136 F.3d 776 (Fed. Cir. 1998) (constitutional claims should generally be presented to VA before Veterans Court)