Michael G. Martinez v. Office of Personnel Management

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MICHAEL G. MARTINEZ,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2023-2394
______________________
Petition for review of the Merit Systems Protection
Board in No. DA-844E-21-0160-I-1.
______________________
Decided: March 7, 2024
______________________
MICHAEL G ARY MARTINEZ, San Antonio, TX, pro se.
ERIC J OHN SINGLEY , Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent. Also represented by BRIAN M.
BOYNTON, ALBERT S. I AROSSI, P ATRICIA M. MCCARTHY .
______________________
Before D YK, MAYER , and T ARANTO, Circuit Judges.
P ER CURIAM .
Case: 23-2394 Document: 14 Page: 1 Filed: 03/07/2024

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MARTINEZ v. OPM 2
Michael G. Martinez appeals a decision of the Merit
Systems Protection Board (“board”) affirming the denial of
his application for disability retirement benefits. For the
reasons discussed below, we dismiss his appeal for lack of
jurisdiction.
I. BACKGROUND
In August 2006, Martinez suffered a work-related lum-
bar injury while he was employed as a police officer with
the U.S. Army. Appx. 2, 95–96.* Martinez was removed
from his position because of “[m]isconduct” in September
2008. Appx. 93. On March 25, 2012, the Social Security
Administration (“SSA”) approved Martinez’s application
for SSA disability benefits. Appx. 87.
On December 9, 2019, Martinez reported for his first
and only day of work as a Military Pay Technician with the
Defense Finance and Accounting Service (“DFAS”). Appx.
2, 26. During his first day, Martinez signed documents and
was sworn in but did not otherwise perform any duties of
his position. Appx. 2, 27, 76. Martinez resigned from his
position effective December 10, 2019. Appx. 57, 76, 85.
On December 18, 2019, Martinez filed an application
with the Office of Personnel Management (“OPM”) seeking
to obtain Federal Employees’ Retirement System (“FERS”)
disability retirement benefits. Appx. 82–83. In his appli-
cation, Martinez asserted that his medical conditions were
“exacerbated by partaking in a full time work day sched-
ule” and that he had been unable to sit or stand for an ex-
tended period of time due to chronic pain. Appx. 82.
On March 17, 2020, OPM issued an initial decision
denying Martinez’s application, stating that he did not
meet the criteria for disability retirement benefits because
* “Appx.” refers to the appendix filed with the gov-
ernment’s informal brief.
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MARTINEZ v. OPM 3
his medical conditions were present prior to the time he
started work at DFAS. Appx. 71–72. OPM concluded,
moreover, that Martinez had failed to show that his medi-
cal conditions worsened during his one day of work at
DFAS. Appx. 72. After OPM affirmed its initial decision,
Appx. 75–78, Martinez appealed to the board.
On July 8, 2021, an administrative judge affirmed
OPM’s decision to deny Martinez’s application for FERS
disability retirement benefits. See Appx. 1–11. The admin-
istrative judge determined that Martinez “had a pre-exist-
ing medical condition” and that he had “failed to
demonstrate that, during his one day of employment with
DFAS, his pre-existing condition worsened to the point
that he was not able to perform the duties of the Military
Payroll Technician position.” Appx. 10. The board subse-
quently denied Martinez’s petition for review of the admin-
istrative judge’s initial decision, stating that it found “it
highly unlikely that [Martinez’s pre-existing medical] con-
ditions were not disabling until he showed up for a single
day of sedentary work on December 9, 2019.” Appx. 13.
Martinez then filed a timely appeal with this court.
II. D ISCUSSION
Our jurisdiction to review board decisions is circum-
scribed by statute. See 5 U.S.C. § 7703(c); Marino v. OPM,
243 F.3d 1375, 1376–77 (Fed. Cir. 2001). We can set aside
a decision of the board only if it is found to be: “(1) arbi-
trary, capricious, an abuse of discretion, or otherwise not
in accordance with the law; (2) obtained without proce-
dures required by law, rule, or regulation having been fol-
lowed; or (3) unsupported by substantial evidence.” 5
U.S.C. § 7703(c); see Briggs v. Merit Sys. Prot. Bd., 331 F.3d
1307, 1311 (Fed. Cir. 2003).
This court’s authority to review board decisions is fur-
ther restricted in cases involving FERS disability retire-
ment benefits. See 5 U.S.C. § 8347(c); Lindahl v. OPM, 470
U.S. 768, 791 (1985); Reilly v. OPM, 571 F.3d 1372, 1376
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MARTINEZ v. OPM 4
(Fed. Cir. 2009). In such cases, we are prohibited from re-
viewing the “factual underpinnings” of a decision to deny
an application for disability retirement benefits. Lindahl,
470 U.S. at 791. We are, however, vested with authority
“to determine whether there has been a substantial depar-
ture from important procedural rights, a misconstruction
of the governing legislation, or some like error going to the
heart of the administrative determination.” Id. (citation
and internal quotation marks omitted); see also Vanieken–
Ryals v. OPM, 508 F.3d 1034, 1038 (Fed. Cir. 2007) (ex-
plaining that this court “may only address the critical legal
errors, if any, committed by the [board] in reviewing OPM’s
decision”).
On appeal, Martinez asserts that the report he submit-
ted from his physician, Michael A. Velasquez, M.D., was
sufficient to demonstrate that his pre-existing medical con-
ditions worsened significantly during his employment with
DFAS. Pet. Inf. Br. 2; Pet. Inf. Reply Br. 2–4. According to
Martinez, “the board failed to fully consider the opinion of
Dr. Velasquez when [it] concluded that [his] opinion was
not persuasive in light of other evidence.” Pet. Inf. Reply
Br. 2. In support, Martinez asserts that Velasquez’s report
“clearly explain[ed]” how “the stress of basic daily work ac-
tivities,” such as “sitting, standing, twisting, [and] walk-
ing,” while he was employed at DFAS on December 9, 2019,
“exacerbated [his] current diagnosed conditions to a severe
level of bilateral pain, paresthesia, and weakness.” Pet.
Inf. Reply Br. 4.
The board, however, carefully considered the evidence
in the record, including Velasquez’s report, but determined
that it was insufficient to establish that Martinez “became
disabled on December 9, 2019, or that his condition wors-
ened while he was employed as a Military Payroll Techni-
cian.” Appx. 10. In this regard, the board noted that
Martinez had been diagnosed with lumbar radiculopathy,
degenerative spondylosis, and lumbar strain prior to the
time he began work at DFAS and that the SSA had
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MARTINEZ v. OPM 5
awarded him disability benefits after concluding that he
became disabled on April 15, 2011. Appx. 7. Additionally,
while the board acknowledged Velasquez’s medical report,
it determined that it was “conclusory” and “fail[ed] to set
forth any explanation or findings demonstrating how [Mar-
tinez’s] specific activities on December 9, 2019, exacerbated
his condition.” Appx. 10. We are without authority to re-
view the board’s factual findings on physical disability
questions or to reweigh the evidence it evaluated. See
Vanieken–Ryals, 508 F.3d at 1040 (stating that “[g]iving
little weight to specific evidence because of its individual
failings, such as the lack of qualifications of the author of a
particular medical report, is a factual analysis over which
we have no jurisdiction to review”).
Martinez, moreover, does not identify any “critical le-
gal errors,” id. at 1038, committed by the board in review-
ing OPM’s decision to deny his application for disability
retirement benefits. See Reilly, 571 F.3d at 1377 (empha-
sizing that “in the rare case where the petitioner alleges
that the agency committed legal errors of sufficient gravity,
we have jurisdiction to review the [b]oard’s decision”);
Bracey v. OPM, 236 F.3d 1356, 1363 (Fed. Cir. 2001) (ex-
plaining that this court can review whether the statutes
and regulations related to disability retirement benefits
have been properly construed). Nor does he point to any
“substantial departure from important procedural rights,”
Lindahl, 470 U.S. at 791 (citation and internal quotation
marks omitted), in the board’s proceedings. Thus, because
Martinez challenges only the factual underpinnings of the
decision to deny his application for FERS disability retire-
ment benefits, we lack jurisdiction over his appeal.
III. CONCLUSION
Accordingly, the appeal from the decision of the Merit
Systems Protection Board is dismissed.
DISMISSED
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