NOTE: This disposition is nonprecedential.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. Moorman.

______________________ 

Decided: October 15, 2014

______________________ 

MARCUS SEBASTIAN PAYNE, of Lithia Springs, Georgia, 

pro se. 

ROBERT C. BIGLER, 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, 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 General Counsel, and AMANDA R. BLACKMON, Attorney, United 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 Veterans 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 September 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 Chapter 31 benefits under its Vocational Rehabilitation and 

Employment Program. Order, 2014 WL 289769, at *1. 

Consequently, the VA developed an individualized rehabilitation plan and enrolled Payne in computer certification 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 request, 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 extraordinary 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 regulations 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 additional 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 regional office issued a Statement of the Case regarding 

Payne’s termination and attached instructions for completing an appeal. Payne immediately filed an “emergency 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 mandamus 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 demonstrates 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 administrative 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 mandamus was not appropriate. Id. 

Payne moved for reconsideration or, in the alternative, 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 pleadings, 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 statute 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 constitutional 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 relevant 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 statutes and regulations or improperly decided a rule of law. 

Moreover, the Veterans Court simply recited the mandamus doctrine and applied it to the facts of Payne’s case. 

See Order, 2014 WL 289769, at *2–3. Absent any argument alleging a legal error in the Veterans Court’s determination, 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 terminate 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 violations cannot invoke our jurisdiction. Helfer v. West, 174 

F.3d 1332, 1335–36 (Fed. Cir. 1999). 

We have considered the additional arguments presented 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.