NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

DAVID A. MAYS,

Claimant-Appellant,

v.

ERIC K. SHINSEKI, Secretary of Veterans Affairs,

Respondent-Appellee.

______________________ 

2013-7140

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 12-3519, Judge Robert N. Davis.

______________________ 

Decided: February 12, 2014 

______________________ 

DAVID A. MAYS, of Atlanta, Georgia, pro se. 

MATTHEW P. ROCHE, Trial Attorney, Commercial Litigation 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, BRYANT G. SNEE, Acting Director, and 

DEBORAH A. BYNUM, Assistant Director. Of counsel on the 

brief were DAVID J. BARRANS, Deputy Assistant General 

Counsel, and MEGHAN D. ALPHONSO, Attorney, United 

States Department of Veterans Affairs, of Washington, 

DC.

______________________ 
2 MAYS v. SHINSEKI

PER CURIAM.

David Mays appeals from the decision of the United 

States Court of Appeals for Veterans Claims (Veterans 

Court) denying his petition for a writ of mandamus. Mays 

v. Shinseki, No. 12-3519 (Ct. Vet. App. June 25, 2013). 

For the reasons stated below, we dismiss for lack of 

jurisdiction.

BACKGROUND

Mr. Mays was a member of the Reserve Officers’ 

Training Corps (ROTC) from 1971 until 1973. When Mr. 

Mays completed his undergraduate degree in 1974, he 

signed an agreement with the U.S. Army to delay entry 

into active duty until September 1977 in order to attend 

dental school. Thereafter, Mr. Mays served on active duty 

from July 1978 to July 1980. 

In 1981, Mr. Mays filed an application for educational 

benefits under 38 U.S.C. Chapter 34. The Department of 

Veterans’ Affairs (VA) Regional Office (RO) denied his

claim. It concluded that in order to be eligible for benefits 

under Chapter 34, Mr. Mays was required to have entered 

into active service prior to January 1, 1978. Mr. Mays 

filed an appeal to the Board of Veterans’ Appeals (Board). 

The Board denied his claim. Mr. Mays did not appeal the 

Board’s decision, and it became final. 

In January 2009, Mr. Mays filed another claim for 

benefits pursuant to a variety of statutes. The RO denied 

his claim, and Mr. Mays filed a Notice of Disagreement 

(NOD). In March 2009, the RO issued a Statement of the 

Case (SOC) that again denied Mr. Mays’ claim for benefits. Mr. Mays appealed to the Board, which affirmed the 

RO’s denial of his claim for entitlement to benefits. The 

Veterans Court affirmed the Board’s decision. 

In November 2012, Mr. Mays filed a petition for a writ 

of mandamus with the Veterans Court. Mr. Mays alleged 

that the VA failed to communicate with him and failed to 

issue a Supplemental Statement of the Case (SSOC) after 

he submitted new evidence subsequent to the RO’s March 

2009 SOC. The VA countered that the petition was moot. 

It argued that Mr. Mays appealed the March 2009 SOC to 

the Board, and the Board’s decision was affirmed by the 
MAYS v. SHINSEKI 3

Veterans Court. The VA argued that because Mr. Mays’ 

claim was fully processed, he was not entitled to a SSOC. 

In addition, in January 2013, the RO issued a decision

finding that Mr. Mays did not submit any new and material evidence, and stated that “[a] photocopy or other 

duplication of information already contained in a VA 

claims folder does not constitute new evidence since it was 

previously considered.” J.A. 5. Following the VA’s response, Mr. Mays filed a “Motion for a Relevant/Definitive 

RO Response.” He contended that the January 2013 RO 

decision did not contain an original signature and did not 

adequately explain what constitutes new evidence. 

In June 2013, the Veterans Court denied Mr. Mays’ 

petition for a writ of mandamus. First, the Veterans 

Court ruled that a SSOC was unwarranted because both 

the Board and Veterans Court issued decisions on Mr. 

Mays’ appeal following the RO’s March 2009 SOC, and 

the RO issued a decision concerning the recent evidence 

submitted by Mr. Mays. Second, the Veterans Court 

ruled that, even if Mr. Mays argued that the RO’s January 2013 decision needed clarification, he did not have a 

right to the writ of mandamus from the Veterans Court. 

Instead, the Veterans Court stated that Mr. Mays should 

submit any arguments concerning alleged deficiencies of 

the January 2013 RO decision to the VA. Mr. Mays 

appeals.

DISCUSSION

We have jurisdiction to review “the validity of a decision of the [Veterans] Court on a rule of law or of any 

statute or regulation . . . or any interpretation thereof 

(other than a determination as to a factual matter) that 

was relied on by the [Veterans] Court in making the 

decision.” 38 U.S.C. § 7292(a). We lack jurisdiction, 

however, to review a challenge to factual determinations 

or the application of a law or regulation to particular 

facts, except to the extent that an appeal presents a 

constitutional issue. Id. § 7292(d). Our jurisdiction does 

not broaden in the context of a writ of mandamus. See

Cox v. West, 149 F.3d 1360, 1363 (Fed. Cir. 1998) (“It is 

well established that the [All Writs Act] does not expand a 

court’s jurisdiction.”). 
4 MAYS v. SHINSEKI

Mr. Mays contends that we have jurisdiction to review 

rules of finality. Mr. Mays relies on two statutes. First, 

he cites 38 U.S.C. § 5108, which provides that, “[i]f new 

and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary 

shall reopen the claim . . . .” Second, Mr. Mays cites 

§ 7111(a), which provides that, “[a] decision by the Board 

is subject to revision on the grounds of clear and unmistakable error. If evidence establishes the error, the prior 

decision shall be reversed or revised.” Mr. Mays also 

argues that the VA fabricated a government document, 

failed to respond to his “Motion for a Relevant/Definitive 

RO Response,” and incorrectly ruled that he did not 

submit new evidence without validation or affidavit. Mr. 

Mays further argues that the VA deprived him of his Fifth 

Amendment right to Due Process. He contends that the 

RO should have issued a SSOC following its January 2013 

decision, and should have provided an affidavit or declaration in support of the RO’s decision, in order to adequately explain what constitutes new evidence under 

§ 5108. 

We conclude that our court lacks jurisdiction over this 

appeal. In denying Mr. Mays’ petition, the Veterans 

Court did not make a decision on, or interpret, any aspect 

of § 5108 or § 7111(a), as is required to establish our 

jurisdiction under 38 U.S.C. § 7292(a). Indeed, the Veterans Court did not rely on either provision. Mr. Mays 

argues on appeal that it was an abuse of discretion for the 

Veterans Court to deny his writ of mandamus because he 

presented new evidence. The VA expressly addressed his 

argument and found that the evidence was not new. 

Whether evidence is “new and material” involves either a 

factual determination or the application of law to facts. 

See Barnett v. Brown, 83 F.3d 1380, 1383–84 (Fed. Cir. 

1996). We lack jurisdiction to review this fact finding.1 

38 U.S.C. § 7292(d). 

1 Mr. Mays nominally mentions a “due process” 

challenge. We do not believe that Mr. Mays has plausibly 

alleged a Fifth Amendment Due Process violation. Helfer 

v. West, 174 F.3d 1332, 1335 (Fed. Cir. 1999) (An appel-

 
MAYS v. SHINSEKI 5

CONCLUSION

We have considered Mr. Mays’ remaining arguments 

on appeal, and conclude that they do not present an issue 

over which we have jurisdiction.

DISMISSED

lant’s mere characterization of an appeal as “constitutional in nature does not confer upon us jurisdiction that we 

otherwise lack.”).