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Rashid El Malik v. Eric K. Shinseki

February 13, 2012

RASHID EL MALIK, CLAIMANT-APPELLANT,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, RESPONDENT-APPELLEE.



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

Per curiam.

NOTE: This disposition is nonprecedential.

Before PROST, MAYER, and REYNA, Circuit Judges.

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 mandamus, 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. Because 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 administered 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 attorneys. See, e.g., 38 C.F.R. § 14.629(b). Among other things, the regulations require applicants for accreditation to disclose information regarding any criminal background. Id. § 14.629(b)(2)(iv).

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 administered 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.*fn1

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 violated 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 returned El Malik's application to him along with a letter explaining that the VA would not reinstate his accreditation. 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 further 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 attorney makes full restitution to each claimant from whom the agent or attorney collected or re-ceived an excessive fee. If the agent or attorney makes such restitution, the Secretary may reinstate 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 reinstatement 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 regulations which are necessary or appropriate to carry out the laws administered by the Department . . . .")). While the VA opted to permit reinstatement for suspended accreditations 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 prescribed 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 application 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 termination 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 findings relied upon to disaccredit him in 2005 could not be used to reject his new application for accreditation, under 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 mandamus: (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 cautioned him not to raise issues before this court that have already been decided. Because El ...


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