NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

                RASHID EL MALIK,
                 Claimant-Appellant

                           v.

 DAVID J. SHULKIN, SECRETARY OF VETERANS
                   AFFAIRS,
              Respondent-Appellee
             ______________________

                      2017-1167
                ______________________

   Appeal from the United States Court of Appeals for
Veterans Claims in No. 15-4885, Judge Margaret C.
Bartley.
               ______________________

                Decided: April 11, 2017
                ______________________

   RASHID EL MALIK, Palos Verdes Estate, CA, pro se.

    STEVEN MICHAEL MAGER, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent-appellee. Also
represented by BENJAMIN C. MIZER, ROBERT E.
KIRSCHMAN, JR., FRANKLIN E. WHITE, JR.; BRIAN D.
GRIFFIN, JONATHAN KRISCH, Office of General Counsel,
2                                      EL MALIK   v. SHULKIN



United States Department of Veterans Affairs, Washing-
ton, DC.
                ______________________

    Before PROST, Chief Judge, LOURIE and TARANTO, Cir-
                      cuit Judges.
PER CURIAM.
    Rashid El Malik (“El Malik”) appeals from the order
of the U.S. Court of Appeals for Veterans Claims (“Veter-
ans Court”) denying his petition for a writ of mandamus.
El Malik v. McDonald, No. 15-4885, 2016 WL 3227961
(Vet. App. June 13, 2016) (“Order”). Because we find that
the Veterans Court properly denied El Malik the extraor-
dinary relief of mandamus, we affirm.
                      BACKGROUND
    On December 29, 2015, El Malik filed a petition for a
writ of mandamus in the Veterans Court, asserting that
he “is without judicial process and is confronted with an
extraordinary situation.” Respondent’s Appendix (“R.A.”)
15. El Malik claimed that the Department of Veterans
Affairs (“VA”) and its agents improperly disbursed Special
Adaptive Housing (“SAH”) funds from an escrow account
to BNS Construction (“BNS”), a contractor hired to work
on his home to accommodate his motorized wheelchair,
without ensuring that BNS had obtained required per-
mits; allowed BNS to work on his home without the
permits; and ignored municipal stop-work orders. R.A.
20–22. El Malik further alleged that the VA breached its
fiduciary duties and violated its own procedures when it
disbursed escrow funds to BNS, which abandoned the
project without completing the contracted-for work. R.A.
16–22. El Malik stated that the remaining escrow funds
are insufficient to complete the remaining work and asked
the Veterans Court to (1) “[c]larify the confusion” between
38 U.S.C. § 2105 and VA Manual M26-12, ch. 8; (2)
“[e]xpeditiously remit the misused funds” to the escrow
EL MALIK   v. SHULKIN                                    3



account; and (3) require the VA to “put [him] back in the
position he would have been in but for the misuse of the
funds.” R.A. 16.
    On February 25, 2016, the Veterans Court ordered
the Secretary of Veterans Affairs (“Secretary”) to respond.
Order at *1. On March 15, 2016, the Secretary responded
and informed the court that a request for equitable relief
as to the SAH funds had been denied on January 28, 2016
after review because there was no evidence of administra-
tive error or loss suffered due to reliance on an erroneous
benefits determination. R.A. 48, 52. As to the “confusion”
between 38 U.S.C. § 2105 and VA Manual M26-12, ch. 8,
the Secretary argued that El Malik mistakenly equated
the VA’s fiduciary functions and responsibilities outlined
in VA Manual M26-12 with a perceived government
interest in his residence. R.A. 49. The Secretary stated
that 38 U.S.C. § 2105 only relates to the government’s
non-assumption of liability over any real property under
the SAH program in which it does not have a legal inter-
est, and that this provision is unrelated to the VA’s re-
sponsibilities outlined in VA Manual M26-12. R.A. 49.
As to El Malik’s claims involving BNS, the Secretary
stated that El Malik should seek relief through litigation
in the California state court system by means of a claim
for a possible breach of contract by BNS, not by means of
a writ of mandamus from the Veterans Court. R.A. 48.
    On March 18, 2016, El Malik replied, generally argu-
ing that he did not have an alternative because he “with-
drew [his] suit [in California] with prejudice” after BNS
had agreed to return $5,000 of the grant fund and the VA
denied him equitable relief even though he had not re-
quested it. R.A. 55, 57.
    On June 13, 2016, a single judge of the Veterans
Court denied El Malik’s petition for a writ of mandamus,
finding that El Malik had failed to meet his burden of
establishing that he is entitled to mandamus relief.
4                                       EL MALIK   v. SHULKIN



Order, 2016 WL 3227961 at *2–4. First, citing its own
precedent, Werden v. West, 13 Vet. App. 463 (Vet. App.
2000), the Veterans Court held that it lacked jurisdiction
to review petitions challenging the manner in which an
SAH grant is disbursed by the Secretary even though it
expressed certain “reservations” about whether Werden
had been correctly decided. Order, 2016 WL 3227961 at
*2 & n.1 (citing Werden, 13 Vet. App. at 468). Second, the
Veterans Court concluded that, even assuming jurisdic-
tion, it would not be able to provide the legal or equitable
relief El Malik was seeking in the forms of “remit[tance]”
or “put[ing] [him] back in the position he would have been
in.” Id. at *3. The Veterans Court noted that the statute
precludes the Secretary from paying additional SAH
grants after the approved SAH grants have been exhaust-
ed, and it lacks the power to grant equitable relief. Id.
Finally, even assuming the view of the law most favorable
to El Malik regarding his potentially-underlying constitu-
tional claims, the Veterans Court concluded that the
instant petition was premature because El Malik current-
ly has adequate alternative means to pursue his claims,
including potential constitutional claims, in the VA other
than seeking a writ of mandamus from the Veterans
Court. Id. at *4.
    On June 20, 2016, El Malik filed a motion for a panel
decision. R.A. 6. The Veterans Court granted the motion
but ordered that the single-judge order on June 13, 2016
remains the decision of the Veterans Court. R.A. 6–7.
Subsequently, El Malik requested a full-court review,
which the Veterans Court denied. R.A. 8. Judge Kasold
dissented, noting that Werden, which was critically dis-
cussed in the single-judge order, should have been ana-
lyzed in the panel decision, and that en banc review was
warranted. R.A. 8–9. El Malik timely appealed from the
decision of the Veterans Court.
EL MALIK   v. SHULKIN                                    5



                        DISCUSSION
    We have limited jurisdiction to review decisions by
the Veterans Court. See 38 U.S.C. § 7292. We have
jurisdiction to review “all relevant questions of law,
including interpreting constitutional and statutory provi-
sions,” 38 U.S.C. § 7292(d)(1), but we lack jurisdiction to
review challenges to “a factual determination” or to “a law
or regulation as applied to the facts” except to the extent
that the appeal presents a constitutional issue. 38 U.S.C.
§ 7292(d)(2).
    On appeal, El Malik maintains that a legal issue ex-
ists regarding the interpretation of 38 U.S.C. § 2105 and
VA Manual M26-12. Pet. Br. 1–2. El Malik also makes
constitutional arguments relying in part on Judge
Kasold’s dissent from the Veterans Court’s denial of en
banc review. Pet. Br. 1–2, 4–6. Finally, El Malik further
argues that he lacks adequate alternative means to
pursue his claims because following the prescribed VA
appeals process would result in undue prejudice owing to
the indefinite time frame for an administrative action.
Pet. Br. 6–7.
    The government makes several arguments in re-
sponse. First, it argues that this court lacks jurisdiction
to review the Veterans Court’s “factual findings” regard-
ing availability of alternative means for relief and the
court’s “application of the law on mandamus to the facts
in this case.” Resp. Br. 12–13. The government also
argues that no legal question is present because (1) 38
U.S.C. § 2105 or VA Manual M26-12 do not provide El
Malik with any legal rights, and nonetheless were not
relied upon by the Veterans Court in its decision; and (2)
the validity of Werden or any potential constitutional
arguments are not directly before this court through this
mandamus appeal. Resp. Br. 13–18. Finally, even if this
court assumes jurisdiction, the dismissal of mandamus
was correctly decided, the government argues, because El
6                                       EL MALIK   v. SHULKIN



Malik has alternative means for relief, namely, in the
forms of (1) requesting additional funds through the SAH
program, which actually had been expanded beyond what
was mentioned in the Veterans Court’s decision; (2)
providing arguments at the VA concerning why additional
funds are warranted; and (3) proceeding with the appeal
process to the VA Board regarding any adverse decisions
at the VA. Resp. Br. 19–20. The government notes that
the hardship for El Malik that may inherently result from
the VA appeals process is not a reason to grant manda-
mus relief. Resp. Br. 20–21.
    Mandamus relief is “a drastic one, to be invoked only
in extraordinary situations.” Kerr v. U.S. Dist. Court, 426
U.S. 394, 402 (1976) (citations omitted). A petitioner
seeking a writ of mandamus must show (1) that he has
“no other adequate means to attain the relief he desires”;
(2) that his “right to issuance of the writ is clear and
indisputable”; and (3) that “the writ is appropriate under
the circumstances.” Cheney v. U.S. Dist. Court, 542 U.S.
367, 380–81 (2004) (internal quotation marks and cita-
tions omitted). Furthermore, the issuance of the writ of
mandamus is “in large part a matter of discretion with
the court to which the petition is addressed.” Kerr, 426
U.S. at 403 (citations omitted).
    As an initial matter, we do have jurisdiction to review
the Veterans Court’s “decision whether to grant a man-
damus petition that raises a non-frivolous legal question.”
Beasley v. Shinseki, 709 F.3d 1154, 1158 (Fed. Cir. 2013);
see also Lamb v. Principi, 284 F.3d 1378, 1382 (Fed. Cir.
2002). In reviewing the Veterans Court’s mandamus
decisions, “[w]e may not review the factual merits,” but
“we may determine whether the petitioner has satisfied
the legal standard for issuing the writ.” Beasley, 709 F.3d
at 1158.
     We agree with the Veterans Court that El Malik has
failed to establish that he is entitled to the extraordinary
EL MALIK   v. SHULKIN                                    7



relief of mandamus. As noted by the Veterans Court, a
claimant in El Malik’s situation generally should present
his constitutional arguments to the VA before presenting
them to the Veterans Court. See Ledford v. West, 136
F.3d 776, 780 (Fed. Cir. 1998). He did not do so here.
Moreover, the Veterans Court held that El Malik failed to
meet his burden to show that he is entitled to mandamus
relief, in particular, that he lacked adequate alternative
means for relief. The Veterans Court faithfully applied
existing mandamus jurisprudence in deciding the present
case, and we find no error in its doing so.
    El Malik’s arguments as to the inadequacy of the
available VA appeals process fail. Although pursuing the
prescribed VA appeals process may involve an uncertain
time frame, such uncertainties do not amount to the type
of undue prejudice that warrants granting mandamus.
See Beasley, 709 F.3d at 1159; Lamb, 284 F.3d at 1383–
84.
    El Malik attempts to raise a legal issue by contending
that the interpretations of 38 U.S.C. § 2105 and VA
Manual M26-12 are contradictory. However, in denying
the mandamus petition, the Veterans Court did not
interpret any statute or regulation nor did it adopt the
Secretary’s argument as to his underlying statutory
interpretation. The Veterans Court did not, and did not
need to, draw any legal conclusion concerning any alleged
statutory contradiction because El Malik’s petition for
mandamus relief was defective due to the existence of
adequate alternative means for relief. See Cheney, 542
U.S. at 380–81. Indeed, although El Malik raises con-
cerns over possible legal error in statutory interpretation
by the VA or the Veterans Court, the disposition of the
mandamus relief sought here does not rest on any partic-
ular interpretation of the statute or regulation pointed to
by El Malik, let alone on an erroneous interpretation of
the statute or regulation. We thus find no error in the
Veterans Court’s decision.
8                                     EL MALIK   v. SHULKIN



    Similarly, we find El Malik’s arguments relying on
the existence of a dissent in the Veterans Court regarding
its precedent, Werden, inapposite. At its core, El Malik’s
complaint appears to center around the unsatisfactory
work done, or not done, by the contractor and subsequent
disbursements of the SAH escrow funds, which apparent-
ly left him with insufficient funds to finish the work on
his home. However, El Malik is not directly seeking
additional SAH funds or challenging the VA’s disburse-
ments of the SAH funds through the prescribed appeals
process, in which he could have squarely questioned
Werden, at the VA and later in the Veterans Court.
Regardless whether or not Werden was decided correctly
by the Veterans Court, El Malik is not entitled to man-
damus relief here. Mandamus is not available for a
veteran to bypass other prescribed means for relief, such
as seeking relief directly from the VA and appealing any
adverse decision to the VA Board. See Lamb, 284 F.3d at
1384 (citations omitted).
    Therefore, to the extent that any “non-frivolous legal
question” was raised in El Malik’s mandamus petition, we
conclude that the Veterans Court did not err in denying
El Malik’s petition.
                      CONCLUSION
     We have considered El Malik’s other arguments but
find them unpersuasive. For the foregoing reasons, we
affirm the order of the Veterans Court denying the peti-
tion for a writ of mandamus.
                      AFFIRMED