Rashid El Malik v. United States

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RASHID EL MALIK,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2024-1746
______________________
Appeal from the United States Court of Federal Claims
in No. 1:20-cv-00267-MRS, Judge Molly R. Silfen.
______________________
Decided: December 6, 2024
______________________
RASHID EL MALIK, Palos Verdes Estate, CA, pro se.
LIRIDONA SINANI, Commercial Litigation Branch, Civil
Division, United States Department of Justice,
Washington, DC, for defendant-appellee. Also represented
by BRIAN M. BOYNTON, PATRICIA M. MCCARTHY, LOREN
MISHA PREHEIM.
______________________
Before MOORE, Chief Judge, REYNA and TARANTO, Circuit
Judges.
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EL MALIK v. US 2
PER CURIAM.
Rashid El Malik, a service-disabled veteran, was
granted certain veterans benefits under Title 38, United
States Code, by the United States Department of Veterans
Affairs (VA). The statutory benefits, provided to enable
independent living, consisted of improvements to Mr. El
Malik’s home. VA entered into a contract with Moderno,
Inc., a construction company, for Moderno to perform the
construction work. Dissatisfied with the work being done,
Mr. El Malik sought relief through various routes. Before
us now is his action in the United States in the Court of
Federal Claims (Claims Court) under the Tucker Act, 28
U.S.C. § 1491(a)(1), asserting a government breach of the
VA-Moderno contract. The Claims Court dismissed the
case for lack of subject-matter jurisdiction and for failure
to state a claim on which relief can be granted. El Malik v.
United States, 170 Fed. Cl. 590 (2024) (Claims Court
Decision). We affirm.
I
A
Mr. El Malik, a service-disabled veteran, was granted
benefits under the Vocational Rehabilitation and
Employment (VR&E, now known as Veteran Readiness
and Employment) program for independent-living services
and assistance. 38 U.S.C. § 3120(a), (b); 38 C.F.R.
§ 21.160(a). In particular, on September 11, 2017, Mr. El
Malik and a VR&E counselor executed an individual
written rehabilitation plan that lists fourteen objectives to
improve Mr. El Malik’s ability to live safely in his home.
SAppx44–51. Meeting those objectives called for making
improvements to Mr. El Malik’s home, and on May 30,
2018, VA and Moderno entered into a contract—initially
valued at $211,906.33—under which Moderno was to do
specified home-improvement work. SAppx21; SAppx54–
87.
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EL MALIK v. US 3
On June 18, 2019, Mr. El Malik, asserting that he was
a third-party beneficiary of the VA-Moderno contract, filed
a claim with VA under the Contract Disputes Act (CDA), 41
U.S.C. §§ 7101–07. He alleged that Moderno performed
“faulty and incomplete” work that left him in “unhealthful
and unsafe living conditions” and was causing “ongoing
damage to his property.” SAppx28; SAppx30–37
(enumerating specific work that was incomplete or had
been performed poorly). And he requested that Moderno
be required to fully perform the contract and also sought
damages of $983.68 and claim-preparation costs of
$1,525.00. SAppx24–25.
When VA had not issued a decision after a certain time,
Mr. El Malik appealed VA’s “deemed denial” to the Civilian
Board of Contract Appeals (Board or CBCA), which, on
February 28, 2020, dismissed the case. El Malik v.
Department of Veterans Affairs, CBCA 6600, 20-1 BCA
¶ 37,536, at 3. The Board concluded that “[o]nly a
‘contractor’ may appeal a contracting officer’s decision”—
that is, a “party to a federal government contract other
than the Federal Government”—and “Mr. El Malik is not a
contractor nor did he sign the contract.” Id. The Board
added, however, that Mr. El Malik “could be considered a
third[-]party beneficiary” and “[a]lthough such third-party
beneficiaries cannot seek recourse under the [Contract
Disputes Act], they may be able to utilize their third-party
beneficiary status to seek damages in the Court of Federal
Claims under the Tucker Act.” Id. at 3–4. Mr. El Malik did
not appeal from the Board’s decision.
B
On March 9, 2020, Mr. El Malik filed a complaint in the
Claims Court under the Tucker Act, 28 U.S.C. § 1491(a)(1),
including his extensive June 2019 CDA claim in the
complaint. SAppx20–43. As relevant here, he asserted a
government breach of the VA-Moderno contract, and he
sought full performance of the contract and monetary
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EL MALIK v. US 4
damages for allegedly incomplete and faulty work.
SAppx41–42.1 In July 2020, the government moved to
dismiss the complaint on several grounds, including two
now at issue. First, the government argued that Tucker
Act jurisdiction is unavailable for Mr. El Malik’s claim
because it is a benefits claim subject to Title 38’s exclusive
review process, established by the Veterans’ Judicial
Review Act (VJRA), Pub. L. No. 100-687, 102 Stat. 4105
(1988), which requires proceeding through the United
States Court of Appeals for Veterans Claims (Veterans
Court), see 38 U.S.C. §§ 511(a), (b)(4), 7251–98. Second, the
government argued that, in any event, Mr. El Malik had
not alleged a government breach of the VA-Moderno
contract, of which, moreover, he was not a third-party
beneficiary.
The Claims Court allowed the contract claim to
proceed. SAppx123–25. Throughout 2021, the court held
six conferences to receive status updates on the ongoing
construction work. Such work included additional home
improvements pursuant to multiple contract amendments
that increased the contract value to $692,609.66. In 2022,
VA and Moderno “officially closed” the contract. Claims
Court Decision, at 593.
On May 3, 2023, the court sought from Mr. El Malik
specificity as to the items for which he sought monetary
damages. Mr. El Malik responded six days later with a
motion to amend his complaint, seeking to provide
estimates of damages for his existing breach-of-contract
claim. On June 9, 2023, the government renewed its
arguments to dismiss the breach-of-contract claim—for
lack of subject-matter jurisdiction by virtue of VJRA
1 Mr. El Malik also asserted tort claims and an
Eighth Amendment violation, which were dismissed as
outside the Claims Court’s jurisdiction, SAppx123–25, and
are not at issue here.
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EL MALIK v. US 5
exclusivity and for no plausible allegation of a government
breach of contractual obligations.
On April 8, 2024, the Claims Court—now acting
through a newly assigned judge—granted the
government’s motion and dismissed the case. Claims Court
Decision, at 592. First, the court held that VJRA
exclusivity barred Tucker Act jurisdiction over Mr. El
Malik’s claim, whose subject was VA’s provision of veterans’
benefits under the Title 38 provisions governing
independent-living services. Id. at 594–97 (citing 38 U.S.C.
§ 511; 38 C.F.R. § 20.3(e)). Second, the court ruled that
even if it did have jurisdiction over Mr. El Malik’s claim
and if it did accept his assertion that he was a third-party
beneficiary, dismissal for failure to state a claim was
required because Mr. El Malik “ha[d] not plausibly alleged
that the government breached its contract with Moderno.”
Id. at 598 (emphasis added).
Mr. El Malik timely appealed. We have jurisdiction
under 28 U.S.C. § 1295(a)(3).
II
The jurisdictional-exclusivity ruling by the Claims
Court in this case is a matter of law, which we decide de
novo based on accepting the plausible factual allegations of
the complaint. See, e.g., Estes Express Lines v. United
States, 739 F.3d 689, 692 (Fed. Cir. 2014); Texas Peanut
Farmers v. United States, 409 F.3d 1370, 1372 (Fed. Cir.
2005). The same standard of review applies to the Claims
Court’s dismissal for failure to state a claim because the
complaint contains no plausible allegation of a breach of
contract by the government. Turping v. United States, 913
F.3d 1060, 1064 (Fed. Cir. 2019). In reading a complaint,
some deficiencies of articulation are more readily
overlooked for pro se plaintiffs than for represented
plaintiffs. Hughes v. Rowe, 449 U.S. 5, 9 (1980). Here, that
greater leniency makes no difference to the outcome.
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EL MALIK v. US 6
A
Mr. El Malik first challenges the Claims Court’s
holding that VJRA exclusivity barred Tucker Act
jurisdiction to hear his claim. El Malik Informal Opening
Br. at 8. He contends that “[t]his is not a case about the
determination or award of VA benefits, which would fall
under the VJRA’s exclusive review scheme,” but rather “a
contract dispute arising from the implementation of
already-awarded benefits.” Id. We disagree with Mr. El
Malik.
In VJRA, Congress, which has power “to define the
jurisdiction of lower federal courts it creates,” “exercised
this power to channel judicial review of certain agency
actions to specified lower federal courts.” Personal Audio,
LLC v. CBS Corp., 946 F.3d 1348, 1352 (Fed. Cir. 2020)
(citations omitted). In 38 U.S.C. § 511(a), Congress
provided that “[t]he Secretary shall decide all questions of
law and fact necessary to a decision by the Secretary under
a law that affects the provision of benefits by the Secretary
to veterans . . . .” In the next sentence, Congress then
declared: “Subject to subsection (b), the decision of the
Secretary as to any such question shall be final and
conclusive and may not be reviewed by any other official or
by any court, whether by an action in the nature of
mandamus or otherwise.” § 511(a). Subsection (b) states
that the just-stated bar on any judicial review “does not
apply to” four categories: rules and regulations subject to
38 U.S.C. § 502; certain insurance matters subject to 38
U.S.C. §§ 1975 and 1984; certain housing loan matters and
small-business loan matters subject to 38 U.S.C. §§ 3701–
65; and—of most relevance here—“matters covered by
chapter 72,” 38 U.S.C. §§ 7251–98, which provides for
review by the Veterans Court of decisions of the VA’s Board
of Veterans Appeals.
Those provisions plainly state a bar on judicial review
of Secretary decisions on “all questions of law and fact
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EL MALIK v. US 7
necessary to a decision by the Secretary under a law that
affects the provision of benefits by the Secretary to
veterans,” § 511(a), subject to those four specific
exceptions. The bar, where it applies, is applicable to
review of such a decision “whether by an action in the
nature of mandamus or otherwise.” Id. (emphasis added).
Although there are four exceptions, none of them apply to
allow the present case in the Claims Court. The first three
involve subject matter different from what is at issue here.
And the fourth, where it applies, routes review to the
Veterans Court, 38 U.S.C. § 7252, whose decisions are
reviewed by this court, 38 U.S.C. § 7292—not authorizing
review in the Claims Court.
The review bar applies here because Mr. El Malik’s
claim would require review of “questions of law and fact
necessary to a decision by the Secretary under a law that
affects the provision of benefits by the Secretary to
veterans.” § 511(a). VA administered the independent
living program for Mr. El Malik under 38 U.S.C. § 3120,
SAppx2, which is part of chapter 31 (“Training and
Rehabilitation for Veterans with Service-Connected
Disabilities”) and which states that the Secretary may
promote a veteran’s independent living by providing
services “necessary to enable [a] veteran to achieve
maximum independence in daily living.” 38 U.S.C.
§ 3120(d). The services Mr. El Malik receives under his
VR&E plan—house modifications to improve his capacity
to live safely and independently in his home—qualify as
such benefits. 38 C.F.R. § 20.3(e). And Mr. El Malik’s
contract action challenges VA’s decisions about carrying out
a contract VA entered into to implement its duties and its
authority under the law providing for these rehabilitation
benefits. The contract action thus involves issues of law
and fact necessary to the Secretary’s decision “under” the
rehabilitation-program benefits law. § 511(a); compare
Johnson v. Robison, 415 U.S. 361, 367 (1974) (holding,
before the 1988 VJRA provided for judicial review of
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EL MALIK v. US 8
benefits claims, that what is now § 511(a) did not bar a
constitutional challenge to a veterans-benefit statute, as it
did not challenge an action “under” such a statute).
This straightforward application of § 511 makes
particular sense because Mr. El Malik recognizes that this
result does not leave him without review: He concedes that
such review is available, though in a different forum. The
implementing decisions that are at issue, because they are
about benefits, come within the fourth exception to the bar
on review—for “matters covered by chapter 72,” 38 U.S.C.
§§ 7251–98, i.e., reviewable by the Veterans Court. It is not
disputed that such an implementation decision, under 38
U.S.C. § 3120(d) (incorporating review mechanisms
specified in § 3107(c)), would be “review[able] on appeal to
the Secretary,” whose “[f]inal decisions on such appeals
shall be made by the Board” of Veterans Appeals. 38 U.S.C.
§ 7104(a); see 38 C.F.R. § 20.104(a)(6). A Board decision is
then reviewable by the Veterans Court, nowhere else. 38
U.S.C. § 7252(a). Not surprisingly, Mr. El Malik has used
just that review process, and we have confirmed its
availability in several nonprecedential decisions, including
where we recognized the consequence of precluding a
contract claim in the Claims Court. See El Malik v.
McDonough, Nos. 23-1684, 23-2279, 2024 WL 1109263, at
*3–4 (Fed. Cir. Mar. 14, 2024); El Malik v. Shulkin, 684 F.
App’x 961, 965 (Fed. Cir. 2017); Sindram v. United States,
130 F. App’x 456, 457–58 (Fed. Cir. 2005); see also El Malik
v. United States, 800 F. App’x 560, 561 (9th Cir. 2020)
(similar for claim under Federal Tort Claims Act).
Mr. El Malik, invoking the “law of the case” doctrine,
argues that the Claims Court could not properly draw this
conclusion because, earlier, it had denied the government’s
motion to dismiss on this ground. El Malik Informal
Opening Br. at 14–16. But the doctrine, as applied to a
court’s pre-judgment reconsideration of its own earlier
ruling, “is a principle that guides courts in the exercise of
their discretion, not a binding rule,” and “rigid adherence
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EL MALIK v. US 9
to rulings made at an earlier stage of a case is not required
under all circumstances.” Wye Oak Technology, Inc. v.
Republic of Iraq, 24 F.4th 686, 697–98 (D.C. Cir. 2022); see
Pepper v. United States, 562 U.S. 476, 506 (2011); Arizona
v. California, 460 U.S. 605, 618–19 (1983); Momenta
Pharmaceuticals, Inc. v. Teva Pharmaceuticals USA Inc.,
809 F.3d 610, 619–20 (Fed. Cir. 2015). The Claims Court
at least had discretion here to dismiss the case when its full
analysis led it to the firm conclusion that it lacked subject-
matter jurisdiction, even if it had earlier drawn a contrary
conclusion on a much more truncated analysis. See
Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006)
(explaining that courts “have an independent obligation to
determine whether subject-matter jurisdiction exists, even
in the absence of a challenge from any party,” and “when a
federal court concludes that it lacks subject-matter
jurisdiction, the court must dismiss the complaint in its
entirety”); Folden v. United States, 379 F.3d 1344, 1354
(Fed. Cir. 2011) (“Subject-matter jurisdiction may be
challenged at any time by the parties or by the court sua
sponte.”); Rules of the Court of Federal Claims Rule
12(h)(3) (“If the court determines at any time that it lacks
subject-matter jurisdiction, the court must dismiss the
action.”).
B
Although the foregoing discussion suffices for
affirmance of the dismissal, we briefly address the Claims
Court’s separate ruling that, even if it had jurisdiction over
the breach-of-contract claim, Mr. El Malik had failed to
state a claim on which relief could be granted. We agree
with that ruling.
Mr. El Malik argues that the Claims Court erred in
considering Mr. El Malik’s claim to be only that he was a
third-party beneficiary entitled to enforce certain
government obligations under the contract—rather than
“recognizing Mr. El Malik as a party to the contract with
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EL MALIK v. US 10
specific performance obligations.” El Malik Informal
Opening Br. at 11. But in the Claims Court, Mr. El Malik
did not plead or otherwise argue that he is a party to the
contract with enforcement rights; rather, he asserted only
that he is a third-party beneficiary. See, e.g., SAppx29
(complaint: “the veteran is not authorized to enforce the
contract”); SAppx39 (complaint: describing Mr. El Malik as
“an intended and direct third party beneficiary” of the
contract). Earlier, in fact, CBCA expressly determined that
he is not a party to the contract, El Malik, CBCA 6600, 20-
1 BCA ¶ 37,536, at 3 (“Mr. El Malik is not a contractor nor
did he sign the contract.”), and Mr. El Malik did not appeal
that ruling and did not challenge that conclusion in the
Claims Court. The contention that he is a party with rights
as a promisee is forfeited. See California Ridge Wind
Energy LLC v. United States, 959 F.3d 1345, 1351 (Fed. Cir.
2020) (“We may deem an argument forfeited when a party
raises it for the first time on appeal.”). And this is not a
case in which the contention newly made on appeal is
clearly correct. To the contrary, we see no basis for
concluding that just because Moderno, as part of its
performance obligation to VA, was to check with Mr. El
Malik about the choice of fixtures, he thereby became a
party to what on its face is a two-party contract between
Moderno and the government.
In any event, the decisive flaw in Mr. El Malik’s
contract complaint, as identified by the Claims Court, is
independent of whether he was a party or a third-party
beneficiary. That defect is that Mr. El Malik has not
alleged anything that plausibly constitutes a government
breach of any contractual obligation—which is a
requirement for his breach claim (whether he is asserting
breach as a party or as a third-party beneficiary). Sullivan
v. United States, 625 F.3d 1378, 1380 (Fed. Cir. 2010). He
asserts that the government’s closing out of the contract
violated Federal Acquisition Regulation (FAR)
§ 4.804(c)(1), see El Malik Informal Opening Br. at 14, but
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EL MALIK v. US 11
that is an assertion of a regulatory violation, not of a
contract duty. Likewise, the government had the right to
enforce Moderno’s duties against it, but such enforcement
was not a contractual duty of the government. See
Sullivan, 625 F.3d at 1381 (explaining that it is not a
breach of contract for the government to “fail[] to enforce a
contract provision that it was entitled to enforce”).
Although Mr. El Malik relies on a sentence from Schneider
Moving & Storage Co. v. Robbins, 466 U.S. 364, 370
(1984)—to the effect that a promisor has the same defenses
against a third-party beneficiary as it has against the
promisee in whose shoes the third-party beneficiary
stands—that principle says nothing to identify what duties
the government has under the contract. For those reasons,
we see no error in the Claims Court’s conclusion that Mr.
El Malik failed to plead a breach-of-contract claim against
the government on which relief could be granted.
C
Mr. El Malik argues that the Claims Court abused its
discretion in denying him leave to amend his complaint. El
Malik Informal Opening Br. at 16. But he has not
identified how any proposed amendment would cure either,
let alone both, of the two determinative defects on which
the Claims Court relied to dismiss the case.
III
We have considered Mr. El Malik’s other arguments
and find none of them persuasive. We therefore affirm the
Claims Court’s dismissal for lack of jurisdiction and failure
to state a claim on which relief can be granted.
The parties shall bear their own costs.
AFFIRMED
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