Case: 20-1952 Document: 40 Page: 1 Filed: 12/17/2020
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MARCUS SEBASTIAN PAYNE,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2020-1952
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 20-1297, Judge Joseph L. Falvey,
Jr.
______________________
Decided: December 17, 2020
______________________
MARCUS SEBASTIAN PAYNE, Powder Springs, GA, pro
se.
SOSUN BAE, Commercial Litigation Branch, Civil Divi-
sion, United States Department of Justice, Washington,
DC, for respondent-appellee. Also represented by JEFFREY
B. CLARK, CLAUDIA BURKE, ROBERT EDWARD KIRSCHMAN,
JR.; CHRISTOPHER O. ADELOYE, Y. KEN LEE, Office of
Case: 20-1952 Document: 40 Page: 2 Filed: 12/17/2020
2 PAYNE v. WILKIE
General Counsel, United States Department of Veterans
Affairs, Washington, DC.
______________________
Before NEWMAN, REYNA, and STOLL, Circuit Judges.
PER CURIAM.
Marcus Sebastian Payne appeals from the decision of
the United States Court of Appeals for Veterans Claims
denying his petition for a writ of mandamus. Mr. Payne’s
mandamus petition challenged the Department of Veter-
ans Affairs’ refusal to reinstate a claim and issue a Supple-
mental Statement of the Case. For the reasons discussed
below, we affirm.
BACKGROUND
In November 2012, Mr. Payne filed a claim for compen-
sation for bilateral knee and low back disabilities and left
foot and migraine conditions. The Regional Office denied
the claims and, in May 2017, Mr. Payne submitted a formal
appeal to the Board of Veterans Appeals. In May 2018,
Mr. Payne chose to opt into the VA’s Rapid Appeals Mod-
ernization Program, in which the RO would review his
claim under the higher-level review option. After the RO
higher-level review rating decision denied his claims,
Mr. Payne requested supplemental claim review. In Janu-
ary 2020, after Mr. Payne received a VA foot examination,
the RO issued its rating decision denying his claims under
the supplemental claim review option. The RO informed
Mr. Payne that if he disagreed with the decision, he had
one year from the date of its January 2020 letter to request
review or appeal to the Board.
In February 2020, Mr. Payne filed a petition for a writ
of mandamus in the Veterans Court, arguing that the RO
wrongfully refused to process his claim of entitlement to
VA benefits and issue a Supplemental Statement of the
Case. The Veterans Court determined that Mr. Payne
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PAYNE v. WILKIE 3
could still respond to the RO’s adjudication because the
time to complete a request for review of the RO’s decision
or appeal to the Board has not yet run and Mr. Payne has
until January 2021 to respond to the RO’s decision. Payne
v. Wilkie, No. 20-1297, 2020 WL 1518283, at *2 (Vet. App.
Mar. 31, 2020). The Veterans Court thus denied
Mr. Payne’s petition, concluding that “mandamus is not
warranted because Mr. Payne has not yet exhausted his
administrative remedies.” Id.
Mr. Payne appeals. We have jurisdiction pursuant to
38 U.S.C. § 7292.
DISCUSSION
We review the Veterans Court’s denial of Mr. Payne’s
petition for a writ of mandamus for an abuse of discretion.
Lamb v. Principi, 284 F.3d 1378, 1384 (Fed. Cir. 2002). A
writ of mandamus is a “drastic and extraordinary” remedy
that is only appropriate when there are “exceptional cir-
cumstances amounting to a judicial usurpation of
power . . . or a clear abuse of discretion.” Cheney v. U.S.
Dist. Court, 542 U.S. 367, 380 (2004) (citations and quota-
tion marks omitted). A court must be satisfied that three
conditions are met before it issues a writ: (1) the party
seeking the writ must have no other adequate means to at-
tain the relief he desires; (2) the party must show a clear
and indisputable right to the writ; and (3) the writ is ap-
propriate under the circumstances. Id. at 380–81.
We agree with the Veterans Court that at least the first
of these three conditions is not met in this case. Specifi-
cally, as the Veterans Court noted, Mr. Payne “has not yet
exhausted his administrative remedies” because he has not
pursued the ordinary appeal process in the VA. Payne,
2020 WL 1518283, at *2. A writ of mandamus cannot be
used by a party to avoid the ordinary appeal process. See
Cheney, 542 U.S. at 380–81. As the Veterans Court ex-
plained, Mr. Payne’s next step in the ordinary appeal pro-
cess is “to inform [the] VA of his disagreement with the
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4 PAYNE v. WILKIE
RO’s [January 2020] decision and the avenue of review he
would like to select, including whether he would like to ap-
peal the matter to the Board.” Payne, 2020 WL 1518283,
at *2. Because the strict requirements for granting a writ
of mandamus are not met, we conclude that the Veterans
Court did not abuse its discretion in denying Mr. Payne’s
petition for a writ of mandamus. 1
CONCLUSION
Accordingly, we affirm the decision of the Veterans
Court.
AFFIRMED
COSTS
No costs.
1 We grant Mr. Payne’s Motion to Supplement the
Record, filed on September 3, 2020, and Mr. Payne’s Mo-
tion to Supplement the Reply, filed on September 14, 2020.
We have also considered Mr. Payne’s Citation of Supple-
mental Authority. These motions and the supplemental
authority do not alter our determination in appeal. Fi-
nally, we deny Mr. Payne’s Motion to Strike the Secretary’s
brief, filed on September 16, 2020.