N OTE : This disposition is nonprecedential.



# United States **Court of Appeals**  **for the Federal Circuit**

______________________

MARCUS SEBASTIAN PAY NE,
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. Moo rman.

______________________

Decided: October 1 5 , 2014

______________________

M ARCUS S EBASTIAN P AYNE , of Lithia Springs, Georgia,

pro se.

R OBERT C. B IGLER

, Trial Attorney, Commercial Litig ation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent

- appellee.
With him on the brief were S TUART F. D ELERY , Assistant Attorney General, R OBERT E. K IRSCHMAN

, J R ., Director,
and S COTT D. A USTIN , Assistant Director. Of counsel onPAYNE v. MCDONALD 2

the brief were D AVID J. B ARRANS , Deputy Assistant Ge neral Counsel, and A MANDA R. B LACKMON , Attorney, Uni ted States Department of Veterans Affairs, of Washington,
DC.

______________________

Before L OURIE

, M OORE

, and O ’M ALLEY

, Circuit Judges.

P ER C URIA M

. Marcus Sebastian Payne (“Payne”) appeals from the decision of the United States Court of Appeals for Vete rans 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.

B ACKGROUND

Payne served in the United States Navy from Se ptember 1988 to September 1990 , acqui ring multiple
service

- connected disabilities affecting his employment potential. After an evaluation in 2010, the Department of
Veterans Affairs (“VA”) deemed Payne eligible for Cha pter 31 benefits under its Vocational Rehabilitation and Employment Program. Order , 2014 WL 289769, at *1. Consequently, the VA developed an individualized reh abilita tion plan and enrolled Payne in computer certific ation classes and training. By March 2012, Payne work ed
from hom e 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 work ing in the IRS’ s IT department. In October

2 012 , however, Payne injured his foot and filed a request
to work from home. Payne’s supervisor denied the r equest, noting that the supervisory requirements of the
NPWE necessitate its completion “ in the office, and thePAYNE 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 condi tion. ” Id. at 15, 64. The VA notified Payne of this determination and informed him of his righ t to appeal. In November 2012, Payne filed two Notices of Disagreement with the VA challeng ing his
termination , yet received no response.

One year later, Payne filed a petition for extraord inary relief in th e 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 regul ations and court precedent, to issue a written decision , and
to issue a Statement of the Case in respon se 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 add itional corre spondence in the Veterans Court

, including a

c hallenge to the con stitutionality of the NPWE under the Equal Protection and Due Process Clauses of the Fifth
Amendment

. Id. In January 2014, the Atlanta VA r egional office issued a Statement of the Case regarding Payne’s termination and attached instructions for co mpletin g an appeal. Payne immediately filed an “emerge ncy 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 ma ndamus full relief stated and requested. ” Id. at * 2.

On January 28, 2014, the Veterans Court denied the peti tion. Id. Relying on the standard outlined in CheneyPAYNE v. MCDONALD 4

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 demo nstrates 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 admi nistrative appeal remains available

. Id. Thus, b ecause Payne could still submit a substantive appeal to the Board of Veterans’ Appeals

, the Veterans C ourt held that
his case was not extraordin ary and that a writ of mand amus was not appropriate. Id.

Payne moved for reconsideration or, in the altern ative, for a panel decision. The Veterans Cou rt denied reconsideration by a single judge, yet granted the motion for decision by a panel. Based on a review of the plea dings, 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).

D ISCUSSION

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 sta tute 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 constit utional 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 . . . a nd the merits of my writ ” and failed to properly apply rel evant statutes and regulations to the facts underlying his
mandamus peti tion. Appellant’s Br. 2. That argument, however, challenge s 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 o f statutes and regulations contemplates a legal question , Payne nevertheless fails to identify how the Veterans Court misconstrued the sta tutes and regulations or improperly decided a rule of law.
Moreover , the Veterans Court simply recited the mand amus doctrine and applied it to the facts of Payne’s case.
See Order , 2014 WL 289769, at *2

– 3. Absent any arg ument alleging a legal error in the Veterans Court’ s dete rmination , we do not have jurisdiction over Payne’s appeal.

Payne further alleges constitutional vi olations in his
informal brief , namely

, that the VA’s decision to term inate violated employment di scrimination laws and denied Payne procedural due process. However, the Veterans Court did not decide any constitutional issues. See i d.
Absent a n explanation providing an ade quate basis for Payne’s claims , mere assertions of constitutional viol ations cannot invoke our jurisdiction. H elfer v. West , 174 F.3d 1332, 133 5–3 6 (Fed. Cir. 1999).

We have considered the additional arguments pr esented in Pay ne’s informal appeal brief, but do not find them persuasive. For the foregoing reasons, the appeal is dismissed for lack of jurisdiction.

DISMISSED

C OSTS

No costs.