Opinions / Panel Activity

Last month, the Federal Circuit issued its opinion in Cooperman v. Social Security Administration, a pro se case we have been watching because it attracted an amicus brief. In this case, the Federal Circuit reviewed a judgment of the Merit Systems Protection Board that found “good cause to remove Mr. Cooperman from his position as an administrative law judge at the Social Security Administration.” In a per curiam opinion joined by Judges Lourie, Hughes, and Stark, the Federal Circuit affirmed the Board’s judgment “[b]ecause the Board’s decision is supported by substantial evidence and because the Board did not otherwise err in its analysis.” This is our opinion summary.

The opinion begins by explaining aspects of federal disability law. For example, it explains that “[a]dministrative law judges with the Social Security Administration (SSA) review claims for disability benefits,” including a disability benefit called a “closed period of disability (CPOD).” It further notes that, “[t]o be eligible for CPOD benefits, a claimant must show that they were temporarily disabled, but later experienced a medical improvement that allowed them to work again.” The opinion highlights that agency regulations require “a finding of medical improvement ‘. . . based on the changes in . . . symptoms, signs, and/or laboratory findings.'” The opinion goes on to note the requirement that administrative law judges “make a complete record of all hearing proceedings, which includes . . . any off-the-record proceedings on the record.” It further highlights the requirement for administrative law judges to provide “an explanation of the finding(s) on each issue.”

The opinion then describes the facts of the case:

Mr. Cooperman was an administrative law judge . . . assigned to work in the Office of Disability Adjudication Review (ODAR). . . . Beginning in 2010, claimants began filing complaints that Mr. Cooperman was pressuring them to accept a CPOD determination in lieu of conducting a full disability hearing. . . . After approximately 35 of Mr. Cooperman’s decisions were found “questionable” . . . Mr. Cooperman was offered re-training.

In January 2011, a U.S. Magistrate Judge . . . remanded one of Mr. Cooperman’s cases, noting that “. . . the record does not reflect what was discussed off the record prior to the hearing regarding a ‘proposal’ Plaintiff apparently felt pressured to ‘accept’. . . .’” After the remand, Mr. Cooperman was once again offered re-training. . . . But throughout 2011, Mr. Cooperman’s CPOD decisions continued to draw complaints from claimants . . . resulting in Mr. Cooperman receiving a directive . . . to comply with the requirements for issuing CPOD determinations. . . . Even after receiving this directive, claimants continued to complain about Mr. Cooperman’s decisions, causing the agency to conduct [two] interviews with Mr. Cooperman . . . [revealing] that Mr. Cooperman was continuing to have off-the-record conversations with claimants . . . and was still failing to adequately support his CPOD determinations.

In September 2013, the agency conducted a focused review of Mr. Cooperman’s decisions and found . . . “[CPOD] decisions that were not supported by the evidence of record; off-the-record discussions . . .; and unsecured email communications between [Mr. Cooperman] and claimants . . . that contained [personally identifiable information] belonging to [them].” . . . This led the agency to make a referral to the Office of the Inspector General (OIG) for an investigation into the “possibility of fraud, waste and abuse, or mismanagement. . . .” . . . The OIG’s report found . . . that Mr. Cooperman’s decisions “lacked sufficient . . . evidence to support” those decisions, and that Mr. Cooperman had sent “emails containing [personally identifiable information] that were not encrypted or password protected. . . .”

In October 2015, the agency filed a complaint with the Merit Systems Protection Board to remove Mr. Cooperman from his position for good cause based on two charges: neglect of duties and conduct unbecoming. The neglect of duty charge included specifications directed at Mr. Cooperman’s failure to provide the evidentiary rationale behind his CPOD determinations, his failure to memorialize off-the-record conversations, and his mishandling of claimants’ personally identifiable information. The conduct unbecoming charge included 16 specifications directed at Mr. Cooperman’s email communications with various legal representatives that potentially gave rise to a perception of partiality. The initial decision sustained both charges but found that a 180-day suspension was the appropriate penalty, rather than removal. After both the agency and Mr. Cooperman appealed the initial decision to the full Board, the Board upheld the initial finding sustaining both charges and found good cause to remove Mr. Cooperman from his position. The Board found that . . . an appropriate evaluation rendered removal the appropriate outcome.

Mr. Cooperman now appeals.

The opinion analyzes three arguments presented by Cooperman. It addresses Mr. Cooperman’s first argument:

Mr. Cooperman argues that the neglect of duties finding should be reversed for three reasons: first, because he was allowed to make CPOD decisions based solely on a claimant’s assertion that their medical condition had improved; second, because the standard for “adequately” summarizing his off-the-record proceedings was vague; and third, because he eventually corrected how he handled claimants’ personally identifiable information.

The opinion rejects all three reasons underlying the first argument. It rejects the first reason by finding that the applicable regulation “require[s] that any decision finding medical improvement ‘must be based on improvement in the symptoms, signs, and/or laboratory findings associated with [the] impairment(s).’” It rejects the second reason by noting that “Mr. Cooperman does not explain why the standard is vague, especially given how much training he received about memorializing off-the-record proceedings.” And it rejects the third reason by highlighting that “Mr. Cooperman admitted that he failed to encrypt emails containing personally identifiable information and has not explained why the Board’s finding on that admission was unsupported by substantial evidence.”

The opinion then addresses Cooperman’s second argument. As summarized in the opinion, Cooperman argued “he was denied due process for two reasons: first, because the charge of ‘conduct unbecoming’ is impermissibly vague; and second, because the Board did not allow him to submit additional evidence after the record was closed.” The opinion rejects the reasoning underlying this second argument. Regarding the first reason, the opinion finds that “Mr. Cooperman has not persuasively explained why his ‘conduct unbecoming’ charge is impermissibly vague.” Regarding the second reason, the opinion similarly concludes that “Mr. Cooperman has not explained how any of the emails he sought to add to the record contained ‘new’ or ‘material’ information.”

The opinion next considers and rejects Cooperman’s third and final argument. As explained in the opinion, Cooperman argued that, “even if both charges could be sustained, removal was not the appropriate remedy.” The court found “no reason to disturb the Board’s determination that removal was an appropriate remedy considering the severity of Mr. Cooperman’s conduct.”

As a result of its analysis, the court affirmed “the Board’s decision granting the agency’s request to remove Mr. Cooperman from his position as an administrative law judge.”