This week is Court Week at the Federal Circuit. In total, the court will convene ten panels to consider 55 cases this week. Of these 55 cases, the court will hear oral arguments in 39. The Federal Circuit is providing access to live audio of these arguments via the Federal Circuit’s YouTube channel. This month, one case attracted an amicus brief. Here’s what you need to know about this case.
In this case, a pro se individual is challenging a judgment of the Merit Systems Protection Board removing him from his position as an administrative law judge.
In his opening brief, he presents the following issues for the court to decide:
- “Can the full MSPB authorize removal of an Administrative Law Judge based in part on that Judge’s explicit adherence to written Agency Policy?”
- “Can the full MSPB deprive Petitioner of due process by rejecting Petitioner’s attempt to introduce into the record evidence that was in the Respondent’s possession at all times pertinent to this case, is material and dispositive of a substantial part of the case, was in part improperly withheld from Petitioner by Respondent, and was only discovered by Petitioner through his use of FOIA and chance discoveries, all occurring after the trial concluded?”
- “Can the full MSPB authorize disciplinary action against an ALJ based on an unconstitutionally vague standard regarding ‘conduct unbecoming’?”
- “Can the full MSPB authorize disciplinary action against an ALJ for a matter that was amicably resolved prior to the institution of MSPB proceedings?”
- “Can the full MSPB authorize disciplinary action against an ALJ for allegedly failing to sufficiently memorialize off-the-record conversations with Counsel, where the Agency introduced only five cases as examples of this alleged misconduct out of the thousands of cases the ALJ presided over, and no objective standard of ‘sufficiency’ existed?”
Cooperman argues the Board violated his due process rights in reaching an incorrect decision. He maintains the principal ground upon which his removal was sought was his “alleged failure to follow agency policy in resolving closed-period disability cases.” But, he argues, he did follow this policy. Moreover, he says, among other things the Board unlawfully refused “to allow [him] to supplement the record with dispositive exculpatory evidence” on point.
In response, the Social Security Administration argues the “Board correctly sustained the charges of neglect of duties and conduct unbecoming based on the substantial evidence of the record.” It also contends “the decision of the Board was not arbitrary, did not misapply the legal framework for SSA decisions, and did not violate Mr. Cooperman’s Due Process rights.”
As mentioned, this case attracted an amicus brief. In particular, the Association of Administrative Law Judges/IFPTE filed a brief in support of Cooperman. Its brief argues the “Board erroneously found that the Agency’s Program Operations Manual System (POMS) is not Agency policy in hearing level adjudications and that the Hearings, Appeals and Litigation Law Manual (HALLEX) was binding Agency policy at the hearing level.” As a result, it says, the Board’s “findings and conclusions are not supported by substantial evidence, thereby causing the Board’s penalty rationale to be arbitrary and capricious.”
Notably, the court denied a motion for oral argument, likely because of the court’s practice not to hold oral argument in cases involving a pro se party. As a result, this case is scheduled to be submitted to a panel on Friday, May 5, without oral argument. We will report on developments in this case.