Payne v. McDonald

NOTE: This disposition is nonprecedential.

United States Court of Appeals
for the Federal Circuit
______________________

MARCUS SEBASTIAN PAYNE,
Claimant-Appellant,

v.

ROBERT A. MCDONALD,
Secretary of Veterans Affairs,
Respondent-Appellee.
______________________

2014-7073
______________________

Appeal from the United States Court of Appeals for
Veterans Claims in No. 13-3384, Judge William A. Moor-
man.
______________________

Decided: October 15, 2014
______________________

MARCUS SEBASTIAN PAYNE, of Lithia Springs, Georgia,
pro se.

ROBERT C. BIGLER, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent-appellee.
With him on the brief were STUART F. DELERY, Assistant
Attorney General, ROBERT E. KIRSCHMAN, JR., Director,
and SCOTT D. AUSTIN, Assistant Director. Of counsel on
2 PAYNE v. MCDONALD

the brief were DAVID J. BARRANS, Deputy Assistant Gen-
eral Counsel, and AMANDA R. BLACKMON, Attorney, Unit-
ed States Department of Veterans Affairs, of Washington,
DC.
______________________

Before LOURIE, MOORE, and O’MALLEY, Circuit Judges.
PER CURIAM.
Marcus Sebastian Payne (“Payne”) appeals from the
decision of the United States Court of Appeals for Veter-
ans Claims (“Veterans Court”) denying his petition for a
writ of mandamus. See Payne v. Shinseki, No. 13-3384,
2014 WL 289769 (Vet. App. Jan. 28, 2014) (“Order”).
Because Payne’s arguments challenge only an application
of law to fact, we dismiss for lack of jurisdiction.
BACKGROUND
Payne served in the United States Navy from Sep-
tember 1988 to September 1990, acquiring multiple
service-connected disabilities affecting his employment
potential. After an evaluation in 2010, the Department of
Veterans Affairs (“VA”) deemed Payne eligible for Chap-
ter 31 benefits under its Vocational Rehabilitation and
Employment Program. Order, 2014 WL 289769, at *1.
Consequently, the VA developed an individualized reha-
bilitation plan and enrolled Payne in computer certifica-
tion classes and training. By March 2012, Payne worked
from home as a part-time IT specialist.
In July 2012, the VA modified Payne’s rehabilitation
plan to include a nonpaid work experience (“NPWE”) with
the Internal Revenue Service (“IRS”). Payne immediately
began working in the IRS’s IT department. In October
2012, however, Payne injured his foot and filed a request
to work from home. Payne’s supervisor denied the re-
quest, noting that the supervisory requirements of the
NPWE necessitate its completion “in the office, and the
PAYNE v. MCDONALD 3

option of teleworking from home was not applicable.”
Appellee’s App. 15. Because Payne could not complete the
NPWE as designed, the IRS elected to release Payne due
to “a change in medical condition.” Id. at 15, 64. The VA
notified Payne of this determination and informed him of
his right to appeal. In November 2012, Payne filed two
Notices of Disagreement with the VA challenging his
termination, yet received no response.
One year later, Payne filed a petition for extraordi-
nary relief in the nature of a writ of mandamus at the
Veterans Court. Order, 2014 WL 289769, at *1. In his
petition, Payne sought a court order (1) directing the
Under Secretary for Benefits to comply with VA regula-
tions and court precedent, to issue a written decision, and
to issue a Statement of the Case in response to his two
Notices of Disagreement; (2) reinstating him at the IRS;
and (3) continuing his subsistence allowance, as well as
his benefits and services under Chapter 31. Id. Shortly
thereafter, however, Payne filed a motion to amend his
petition, focusing exclusively on whether “terminating of
Payne benefits and services was, as a matter of law, ultra
vires—period!” Id.
Over the next two months, Payne introduced addi-
tional correspondence in the Veterans Court, including a
challenge to the constitutionality of the NPWE under the
Equal Protection and Due Process Clauses of the Fifth
Amendment. Id. In January 2014, the Atlanta VA re-
gional office issued a Statement of the Case regarding
Payne’s termination and attached instructions for com-
pleting an appeal. Payne immediately filed an “emergen-
cy motion for the [Veterans] Court to issue an order
declaring the ‘signed’ Statement of the Case . . . a legal
nullity and does not moot the petition for a writ of man-
damus full relief stated and requested.” Id. at *2.
On January 28, 2014, the Veterans Court denied the
petition. Id. Relying on the standard outlined in Cheney
4 PAYNE v. MCDONALD

v. United States District Court for District of Columbia,
542 U.S. 367, 380–81 (2004) (holding that a court may
grant a writ of mandamus if (1) the petitioner demon-
strates that he lacks an adequate alternative, (2) the
petitioner demonstrates a clear and indisputable right to
the writ, and (3) the court is convinced that issuing the
writ is warranted), the Veterans Court noted that the
extraordinary writ cannot provide relief when an admin-
istrative appeal remains available. Id. Thus, because
Payne could still submit a substantive appeal to the
Board of Veterans’ Appeals, the Veterans Court held that
his case was not extraordinary and that a writ of manda-
mus was not appropriate. Id.
Payne moved for reconsideration or, in the alterna-
tive, for a panel decision. The Veterans Court denied
reconsideration by a single judge, yet granted the motion
for decision by a panel. Based on a review of the plead-
ings, the panel similarly denied Payne’s request for a writ
of mandamus.
Payne then appealed to this court seeking to invoke
our jurisdiction under 38 U.S.C. § 7292(a).
DISCUSSION
The scope of our review in an appeal from a Veterans
Court decision is limited. We may review a Veterans
Court decision with respect to the validity of a decision on
a rule of law or the validity or interpretation of any stat-
ute or regulation that was relied upon by the Veterans
Court in making its decision. 38 U.S.C. § 7292(a). We
may also review a Veterans Court’s denial of a petition for
a writ of mandamus. Lamb v. Principi, 284 F.3d 1378,
1381–83 (Fed. Cir. 2002). Except with respect to constitu-
tional issues, we “may not review (A) a challenge to a
factual determination, or (B) a challenge to a law or
regulation as applied to the facts of a particular case.” 38
U.S.C. § 7292(d)(2).
PAYNE v. MCDONALD 5

Payne argues that the Veterans Court “‘sub silentio’
ignored my arguments and citations to authorities . . . and
the merits of my writ” and failed to properly apply rele-
vant statutes and regulations to the facts underlying his
mandamus petition. Appellant’s Br. 2. That argument,
however, challenges the application of law to fact, a
matter outside of our limited jurisdiction. 38 U.S.C. §
7292(d)(2); see Conway v. Principi, 353 F.3d 1369, 1372
(Fed. Cir. 2004) (“[W]hile we can review questions of law,
we cannot review applications of law to fact.”). To the
extent Payne’s mere recitation of statutes and regulations
contemplates a legal question, Payne nevertheless fails to
identify how the Veterans Court misconstrued the stat-
utes and regulations or improperly decided a rule of law.
Moreover, the Veterans Court simply recited the manda-
mus doctrine and applied it to the facts of Payne’s case.
See Order, 2014 WL 289769, at *2–3. Absent any argu-
ment alleging a legal error in the Veterans Court’s deter-
mination, we do not have jurisdiction over Payne’s appeal.
Payne further alleges constitutional violations in his
informal brief, namely, that the VA’s decision to termi-
nate violated employment discrimination laws and denied
Payne procedural due process. However, the Veterans
Court did not decide any constitutional issues. See id.
Absent an explanation providing an adequate basis for
Payne’s claims, mere assertions of constitutional viola-
tions cannot invoke our jurisdiction. Helfer v. West, 174
F.3d 1332, 1335–36 (Fed. Cir. 1999).
We have considered the additional arguments pre-
sented in Payne’s informal appeal brief, but do not find
them persuasive. For the foregoing reasons, the appeal is
dismissed for lack of jurisdiction.
DISMISSED
COSTS
No costs.