Petition for Writ of Certiorari — Leonard Cooperman, Petitioner v. Social Security Administration

No. 23-.

Ill

FILED

AUG 0 3 2023

3fn tfje

Supreme Court of tfje Simteb States

OFFICE OF THE CLERK

SUPREME COURT. U.S.

LEONARD COOPERMAN,

Petitioner,

v.

SOCIAL SECURITY ADMINISTRATION,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Federal Circuit

PETITION FOR A WRIT OF CERTIORARI

Leonard Cooperman

Petitioner Pro Se

178 Juniper Ridge Drive

Feeding Hills, MA 01030

(786)252-7615

LennyJ1952@yahoo.com

August 2, 2023

SUPREME COURT PRESS

(888) 958-5705

♦

Boston, Massachusetts

1

QUESTIONS PRESENTED

Petitioner, who was employed as an Administra­

tive Law Judge (ALJ) by Respondent, was the subject

of removal proceedings for “conduct unbecoming of

an ALJ.” Petitioner asserted that such a charge was

void for vagueness citing other federal circuit deci­

sions such as Bence v. Breier, 501 F. 2d 1185 (7th Cir.

1974). See also this Court’s decisions in Grayned v.

City of Rockford, 408 U.S. 104 (1972) and Airport

Commission v. Jews for Jesus, 482 U.S. 569 (1987);

as well as Garcetti v. Ceballos, 547 U.S. 410 (2006) a

case dealing with when it is permissible to circum­

scribe speech by public sector employees, and impose

discipline upon them for it.

His removal was also sought because he followed

the Program Operations Manual System in resolving

cases, which the Respondent contended he had no

right to do.

The Questions Presented are:

1. Is the “conduct unbecoming” standard for

subjecting an employee to disciplinary proceedings

unconstitutionally vague, and therefore violative of

the Due Process Clause of the Fifth Amendment to the

United States Constitution in a situation where free

speech concerns are implicated?

2. Is an ALJ, employed by the Respondent,

required to follow the Respondent’s Program Operations

Manual System (POMS) and if so, does doing so

insulate him from discipline for matters covered by

the POMS?

11

PARTIES TO THE PROCEEDINGS

Petitioner and Appellant-Respondent below

•

Leonard Cooperman

Respondent and Appellee-Petitioner below

•

United States Social Security Administration

Ill

LIST OF PROCEEDINGS

U.S. Court of Appeals for the Federal Circuit

No. 2022-1915

Leonard Cooperman, Petitioner, v. Social Security

Administration, Respondent

Date of Final Opinion: May 16, 2023

Date of Rehearing Denial: June 13, 2023

Merit Systems Protection Board

No. CB-7521-16-0001-T-1

Social Security Administration, Petitioner, v.

Leonard Cooperman, Respondent

Date of Final Order: May 27, 2022

Merit Systems Protection Board,

Administrative Law Judge

No. CB-7521-16-0001-T-1

Social Security Administration, Petitioner, v.

Leonard Cooperman, Respondent

Date of Final Order: March 16, 2017

IV

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED.............................

i

PARTIES TO THE PROCEEDINGS..............

n

LIST OF PROCEEDINGS................................

in

TABLE OF AUTHORITIES.............................

vi

PETITION FOR A WRIT OF CERTIORARI...

1

OPINIONS BELOW.........................................

1

JURISDICTION.................................................

1

CONSTITUTIONAL, REGULATORY, AND

POLICY PROVISIONS INVOLVED........

2

INTRODUCTION AND HISTORY OF THE

CASE............................................................

3

STATEMENT OF THE CASE..........................

7

I.

Question One..........................................

7

II. Question Two..........................................

8

III. Legal Background..................................

10

1. Legal Background on Question One....... 10

2. Legal Background on Question Two....... 12

REASONS FOR GRANTING THE PETITION...... 15

I.

Question One

15

II. Question Two

17

CONCLUSION.......

18

V

TABLE OF CONTENTS - Continued

Page

APPENDIX TABLE OF CONTENTS

Opinions and Orders

Opinion of the United States Court of Appeals

for the Federal Circuit (May 16, 2023)........... . la

Final Order of the Merit Systems Protection

Board of United States of America

(May 27, 2022)................................................... 13a

Initial Decision of the Administrative Law Judge,

Merit Systems Protection Board of United

States of America (March 16, 2017).............. 51a

Rehearing Order

Order of the United States Court of Appeals for

the Federal Circuit Denying Petition for

Panel Rehearing (June 13, 2023)............. . 262a

Federal Regulation

Federal Regulations 5 C.F.R. § 2635.101.......

264a

Other Documents

Social Security Ruling (“SSR”) Reflecting

Social Security Administration Policy

Interpretation on How Adjudicators

Should Consider Federal Court Decisions

(March 22, 2013).........................................

268a

Corrected Principal Brief Filed by Petitioner

Cooperman in the Federal Circuit, Excerpts

270a

(September 1, 2022)

Reply Brief Filed by Petitioner Cooperman in the

Federal Circuit, Excerpts

(February 17, 2023)

276a

VI

TABLE OF AUTHORITIES

Page

CASES

Abruzzo v. Social Security Administration,

489 Fed. App’x 449 (Fed. Cir. 2012)....

6, 10

Airport Commission v. Jews for Jesus,

482 U.S. 569 (1987).................................

i, 4, 11

Avery v. Sec’y of Health and Human Svcs.,

797 F.2d 19 (1st Cir. 1986)....................

14

Bence v. Breier,

501 F. 2d 1185 (7th Cir. 1974), cert,

i, 5, 7, 11, 15, 16

denied, 419 U.S. 1121 (1975)

California School Employees Assn. v. Foothill

Community College District,

52 Cal.Rptr.3d 150 (Cal. Ct. App., 1st

11, 15, 16

Dist. 1975)...........................................

Da Rosa v. Sec'y Health Human Svcs.,

803 F.2d 24 (1st Cir. 1986).................

14

Garcetti v. Ceballos,

547 U.S. 410 (2006)...........................

l

Grayned v. City of Rockford,

408 U.S. 104 (1972)...........................

i, 4,11

Kubetin v. Astrue,

637 F.Supp.2d 59 (D. Mass., 2009).

9, 14

Long v. Social Security Administration,

635 F.3d 526 (Fed. Cir. 2011).........

6, 11

Miles v. Dep’t of Army,

55 M.S.P.R. 633 (1992).....................

10

Skidmore v. Swift & Co.,

323 U.S. 134 (1944)...........................

12

Vll

TABLE OF AUTHORITIES - Continued

Page

Wash. State Dep’t of Soc. and Health Servs.

v. Guardianship Est. ofKeffeler,

537 U.S. 371 (2003)................................

9, 12

Waters v. Bowen,

709 F.Supp. 278 (D.Mass. 1989)...........

14

CONSTITUTIONAL PROVISIONS

U.S. Const, amend. I.

16

U.S. Const, amend. V

2,3

STATUTES

5U.S.C. § 7521......

10

28U.S.C. § 1254(1)

1

REGULATIONS

5 C.F.R. § 2635.101(b)......

5

5 C.F.R. § 2635.101(b)(8)..

2, 11

5 C.F.R. § 2635.101(b)(14)

5, 11

Vlll

TABLE OF AUTHORITIES - Continued

Page

OTHER AUTHORITIES

CAFC,

Court Jurisdiction,

https://cafc.uscourts.gov/home/the-court/

about-the-court/court-jurisdiction/.......... .

17

Social Security Administration,

Best Practices For Claimants’

Representatives (Updated April 2023),

https://www.ssa.gov/appeals/best_

practices.html.............................................

4

Social Security Administration,

Information About SSA’s Hearings and

Appeals Operations, https://www.ssa.gov/

appeals/about_us.html..............................

9

1

m

PETITION FOR A WRIT OF CERTIORARI

LEONARD COOPERMAN, Petitioner here, in the

Court of Appeals, and before the full Merit Systems

Protection Board (MSPB), respectfully petitions for a

writ of certiorari to review the judgment of the United

States Court of Appeals for the Federal Circuit.

OPINIONS BELOW

The opinion of the Court of Appeals is not yet

reported, but bears Federal Circuit case number

22-1915 and is attached at App.la to this petition.

The opinions of the ALJ designated by the MSPB

to hear and decide this case, and of the full MSPB

are, likewise, not reported but are also attached at

App.51a and App.l3a, respectively, to this Petition.

JURISDICTION

The judgment of the court of appeals was entered

on May 16, 2023. A petition for rehearing was filed

on May 26, 2023 and denied on June 13, 2023.

(App.262a) The jurisdiction of this Court is invoked

under 28 U.S.C. § 1254(1).

2

*

CONSTITUTIONAL, REGULATORY, AND

POLICY PROVISIONS INVOLVED

U.S. Const., amend. V

No person shall be ... be deprived of life,

liberty, or property, without due process of

law; nor shall private property be taken for

public use, without just compensation.

The following regulatory provisions and guidance

are reproduced in the appendix.

•

5 C.F.R. § 2635.101(b)(8), (14) relates to

Question 1. (App.264a)

*

Social Security Ruling (SSR) 13-2p(15) relates

to Question 2. (App.268a)

3

♦

INTRODUCTION

AND HISTORY OF THE CASE

This case presents an evident and unmistakable

conflict between the Federal Circuit and the Seventh

Circuit over a significant Constitutional question:

whether-consistent with the Due Process clause of

the 5th Amendment—an Administrative Law Judge

can be removed from office under the “conduct

unbecoming an ALJ” standard; based on emails he

sent to Attorneys with cases pending before him, the

contents of which were deemed “conduct unbecoming”

by the Respondent.

It also presents a clear conflict between the Res­

pondent’s policy which, as shown in this Petition,

requires AUs to adhere to the POMS, and the deci­

sion of the Federal Circuit in this case, which described

the POMS as “merely a guide” for AUs.

Petitioner, at the time removal proceedings against

him were commenced by Respondent in October 2015,

had worked as an Administrative Law Judge (ALJ)

for Respondent for the past ten years.

The complaint seeking his removal contended

that certain emails he sent to Attorneys representing

clients who had matters pending before him constituted

“conduct unbecoming an ALJ.”

It also alleged that he neglected his duty by inad­

equately documenting a claimant’s medical improve-

4

ment in cases where the claimant requested a closed

period of disability benefits. 1

Before the ALJ designated by the MSPB to hear

the removal case, Petitioner contended that he had the

right to rely on POMS 28010.015(0)2, which allowed

him to end a closed period based on the improved

symptoms of the claimant. He also contended that

his emails to Attorneys were appropriate under the

policy of the Respondent.2

The ALJ designated by the MSPB found Res­

pondent guilty of most of the charges, but concluded

a six month suspension rather than removal was the

appropriate penalty. (App.51a.)

Both sides appealed to the full MSPB, which

found that Petitioner’s emails constituted conduct

unbecoming an AU, that Petitioner did not have the

right to rely on POMS, and overruled its’ ALJ, finding

that removal was appropriate. (App.l3a.)

In his initial brief to the Court of Appeals, Peti­

tioner cited the Grayned and Airport Commission

cases as grounds for asserting that the “conduct

unbecoming” standard which the MSPB enforced

1 See POMS 25510 A2, for the definition of a closed period. There

were other grounds alleged as justifying Petitioner’s removal. Two

of these grounds, alleging inadequate summarization on-therecord, of off-the-record conversations with Counsel; and failing to

adequately safeguard personal identifiable information by

sending it to authorized recipients in an unencrypted manner,

are not at issue in this Petition. The third, alleging conduct

unbecoming an ALJ, will be discussed shortly.

2 Social Security Administration, Best Practices For Claimants'

Representatives (Updated April 2023), https://www.ssa.gov/appeals/

best_practices.html

5

against him was unconstitutionally vague. In his reply

brief, Petitioner cited the Bence case as showing the

Seventh Circuit had explicitly found such a standard

unconstitutionally vague.3

In its decision, when presented with Petitioner’s

claim that his convictions of conduct unbecoming

were based on an unconstitutionally vague standard,

the Court of Appeals said first that:

Mr. Cooperman argues that he was denied

due process for two reasons: first, because the

charge of “conduct unbecoming” is imperm­

issibly vague ... 4

It then observed:

The specifications underlying Mr. Cooperman’s conduct unbecoming charge fall into

two categories in 5 C.F.R. § 2635.101(b):

breach of duty of impartiality at (b)(8) and

breach of duty to avoid creating the appear­

ance of a violation of a law or ethical standard

at (b)(14). Mr. Cooperman does not specific­

ally challenge any of the specifications under­

lying this charge, nor does Mr. Cooperman

deny the content of any of the emails that

led to this charge. Instead, Mr. Cooperman

invites us to create a new standard by which

administrative law judges are “only subject

to discipline for a violation of any Federal or

State Law, or any written policy expressly

and specifically defining what constitutes a

3 Those portions of Petitioner’s briefs establishing these argu­

ments are included in the Appendix.

4 The second reason is not relevant to this Petition.

6

violation.” [ ] Mr. Cooperman does not provide

any legal reasoning or support for this

request, and we decline his invitation. Fur­

thermore, Mr. Cooperman asks us to over­

turn two of our casesS upholding the removal

of administrative law judges for conduct

unbecoming charges, but again does not

provide any rationale for us doing so.”6

(internal citation excluded)

Opinion of Court of Appeals, at App.lOa. It affirmed

Petitioner’s removal.

5 The two cases are Long v. Social Security Administration, 635

F.3d 526 (Fed. Cir. 2011) and Abruzzo v. Social Security Admin­

istration, 489 Fed. App’x 449 (Fed. Cir. 2012) (non-precedential)

In each of these cases, the Federal Circuit applied its “conduct

unbecoming” standard to justify removal of an SSA AU.

6 As the portions of Petitioner’s submissions to the Court of

Appeals show, that Court was actually provided by Petitioner

with ample rationale for overturning the “conduct unbecoming”

standard but, for reasons unknown, the Court did not engage it.

7

48STATEMENT OF THE CASE

I.

Question One

The Federal Circuit adheres to the “conduct

unbecoming” standard of discipline, refusing Peti­

tioner’s request to follow the lead of Bence and

declare it unconstitutional.

Bence, on the other hand, in dealing with police

officers who had been disciplined, like Petitioner here,

for written communications, first said:

However, it is well-settled that the prohibition

against vagueness extends to administrative

regulations affecting conditions of govern­

mental employment as well as to penal

statutes, for the former may be equally

effective as a deterrent to the exercise of free

speech as the latter.

The Bence court then said, with particular

relevance for this case:

On its face, the rule proscribes only conduct

which is both “unbecoming” and “detrimental

to the service.” It is obvious, however, that

any apparent limitation on the prohibited

conduct through the use of these qualifying

terms is illusory, for “unbecoming” and

“detrimental to the service” have no inherent,

objective content from which ascertainable

standards defining the proscribed conduct

could be fashioned. Like beauty, their content

exists only in the eve of the beholder. The

subjectivity implicit in the language of the

8

rule permits police officials to enforce the

rule with unfettered discretion, and it is

precisely this potential for arbitrary enforce­

ment which is abhorrent to the Due Process

Clause.

(emphasis supplied)

Thus, the Federal Circuit has adhered to the

“conduct unbecoming” standard, while the Seventh

Circuit has explicitly declared it unconstitutional.

This Circuit split creates confusion among the

Federal workforce, and allows Federal agency managers

to wield this confusion as a cudgel against AUs, as

was done here.

Either the Seventh Circuit is right or the Federal

Circuit is right; they can’t both be right. This Court

should resolve the Circuit split.

II. Question Two

As regards Question 2, Petitioner asks this

Court to resolve what is presently both a Hobson’s

choice for Respondent’s ALJ’s, and a substantial fed­

eral question as well: May they be disciplined for

following Agency guidance as Petitioner was here, or

must they ignore such guidance despite being required

by the Agency to follow it, and face discipline as a

result?

In resolving disability benefits cases over which

he presided, Petitioner followed the Respondent’s

guidance as found in the POMS. Petitioner argued

that the MSPB erred in disciplining him for adhering

to this policy, because under the Respondent’s rules,

found at SSR 13-2p(15)(a) and Federal case law in

his Circuit, See Kubetin v. Astrue, 637 F.Supp.2d 59

9

(D. Mass., 2009) he was not merely permitted, but

required to adhere to it.

However, the Court of Appeals held that:

Courts have recognized that the POMS is

merely a document to guide administrative

law judges and does not replace or supersede

any corresponding regulations. See e.g.,

Wash. State Dep’t of Soc. and Health Servs.

v. Guardianship Est. ofKeffeler, 537 U.S. 371,

385 (2003) (noting that POMS are just “the

publicly available operating instructions for

processing Social Security claims”).(emphasis

added)

In so holding, the Court of Appeals did not discuss

SSR 13-2p(15)(a), cited to it by Petitioner, which spe­

cifically indicates that Respondent’s ALJs were required

to follow the POMS. Nor did it address case law from

the District and Circuit in which Petitioner presided,

stating that Respondent was required to follow the

POMS.

As a result of the decision below, the over 1,500

AUs employed by Respondent7 are between a rock

and a hard place; follow the POMS and suffer the

fate Petitioner did, or ignore the POMS and be sub­

ject to discipline for failing to adhere to Agency policy

and Court orders.

This presents a national problem and therefore

a substantial federal question which this Court should

address.

7 Social Security Administration, Information About SSA’s

Hearings and Appeals Operations, https://www.ssa.gov/appeals/

about_us.html

10

III. Legal Background

1. Legal Background on Question One

Actions taken against Federal Administrative

Law Judges by the Government are subject to the

provisions of 5 U.S.C. § 7521, which provides that

removal may occur only after good cause is established

before the Merit Systems Protection Board (MSPB)

on the record and after an opportunity for a hearing.

The Federal Circuit, which has reviewing authority

over the MSPB, approved a standard establishing that

“good cause” can exist based on “conduct unbecoming

an ALJ ”

In Abruzzo v. SSA, Abruzzo argued, as does

Petitioner here:

that the standard for this charge is “Highly

Subjective And [sic] Circumstance Depend­

ent,” and that “there is no reliable way to

ascertain the line between innocent conduct

and punishable misconduct.”

But the Court rejected that argument in Abruzzo,

holding that:

We find that the Board applied an acceptable

standard here. It described conduct unbecom­

ing as “conduct” that revealed a temperament

that detracted from character or reputation.”

Abruzzo, 2011 MSPB LEXIS 4754, at *6

(citing Miles v. Dep’t of Army, 55 M.S.P.R.

633, 637 (1992) (holding that conduct unbe­

coming is “unattractive, unsuitable, or

detracting from the employee’s character”)).

That standard is consistent with a recent

11

articulation reviewed by this court. In Long

v. SSA, this court reviewed the standard

phrased as “conduct that ‘undermines public

confidence in the administrative adjudicatory

process,”’ including misconduct “relate[d] in

some way to the character traits expected

of an ALJ,” and affirmed the good cause

removal of an ALJ for conduct unbecoming.

635 F.3d 526, 533-36 (Fed. Cir. 2011). We

sustain the Board’s “conduct unbecoming”

standard applied here—that which “detracts

from the AU’s character or reputation” before

the public. We hold that there was no legal

error or abuse of discretion in finding “conduct

unbecoming an ALJ.”

In Petitioner’s case, he argued that

Second, Mr. Cooperman argues that the

Board denied him due process, specifically

because “conduct unbecoming” is imperm­

issibly vague ...

Opinion of Court, at App.6a.

Petitioner supported his argument with—among

other things—authority from this Court, from the

Seventh Circuit (see Bence, infra, at 15), and from a

California Court of Appeals, (see California School

Employees, infra, at 15).

However, the Federal Circuit, after citing the

aspirational (as opposed to punitive) provisions of 5

C.F.R. 2635.101(b)(8) and (14), and contrary to

Petitioner’s citing of extensive legal authority, including

Grayned, Airport Commission, and most persuasively

Bence, showing the “conduct unbecoming” standard

to be unconstitutional, simply said:

12

Mr. Cooperman has not persuasively

explained why his “conduct unbecoming”

charge is impermissibly vague.

Opinion of Court, at App.lOa-lla.

2. Legal Background on Question Two

The exact significance of Respondent’s Program

Operations Manual System, or POMS, has engendered

debate among the lower Courts8 and, as Petitioner is

an example of, confusion among its ALJs.

This Court has described the POMS as the publicly

available operating instructions for processing Social

Security claims and noted that:

While these administrative interpretations

are not products of formal rulemaking, they

nevertheless warrant respect in closing the

door on any suggestion that the usual rules

of statutory construction should get short

shrift for the sake of reading “other legal

process” in abstract breadth. See Skidmore

v. Swift & Co., 323 U.S. 134, 139-140 (1944)”

Washington State Dept, of Social and Health Services

v. Guardianship Estate ofKeffeler, 537 U.S. 371 (2003).

In Petitioner’s case, the Federal Circuit said, citing

the above case, that:

Courts have recognized that the POMS is

merely a document to guide administrative

8 Compare the Federal Circuit’s decision in this case to Frain v.

Commissioner of Social Security, https://casetext.com/case/frainv-commr-of-soc-sec at footnote 4, where Chief Judge Simon noted

that SSA AU’s are required to follow the POMS.

13

law judges and does not replace or supersede

any corresponding regulations, (emphasis

added)

Opinion of Court, at App.7a-8a.

However, Social Security Ruling 13-2p(15)(a), says

that

We require adjudicators at all levels of

administrative review to follow agency policy,

as set out in the Commissioner’s regula­

tions, SSRs, Social Security Acquiescence

Rulings (ARs), and other instructions, such

as the Program Operations Manual System

(POMS). Emergency Messages, and the Hear­

ings, Appeals and Litigation Law manual

(HALLEX). Under sections 205(a) and (b)

and 1631(c) and (d) of the Act, the Commis­

sioner has the power and authority to make

rules and regulations and to establish pro­

cedures, not inconsistent with the Act, which

are necessary or appropriate to carry out

the provisions of the Act. The Commissioner

also has the power and authority to make

findings of fact and decisions as to the

rights of any individual applying for payment

under the Act. Because of the Commission­

er’s delegated authority to implement the

provisions of the Act, we may, from time to

time, issue instructions that explain the

agency’s policies, regulations, rules, or pro­

cedures. All adjudicators must follow our

instructions, (emphasis added).

SSR, App.268a-269a.

14

And in the First Circuit, where Petitioner presided,

case law is clear that the Respondent (and, derivatively,

its employees such as Petitioner) are required, not

advised; but required to follow POMS. For example,

the District Court in Kubetin v. Astrue, quoting sever­

al cases from the First Circuit, remarked that while

POMS may not have binding force,

Courts in this Circuit have required SSA to

follow the standards set forth in POMS

repeatedly. Da Rosa v. Sec’y Health Human

Sues., 803 F.2d 24, 26 (1st Cir. 1986) (vacating

and remanding “for proceedings consistent

with the interpretive guidelines set forth in

the POMS instructions”); Waters v. Bowen,

709 F.Supp. 278, 281-82 (D.Mass. 1989);

accord Avery v. Sec’y of Health and Human

Sues., 797 F.2d 19, 24 (1st Cir. 1986) (con­

struing, in dicta, POMS “as being the latest

word on departmental... policy, committing

the Secretary and superceding any inconsis­

tent discussion and examples”).

Thus, as is the case with the “conduct unbecoming”

standard discussed in question one, and as Petitioner

suggested to the Federal Circuit in his Petition for

rehearing, SSA ALJs are presented with a Hobson’s

choice: follow POMS and suffer the fate Petitioner

did, or fail to follow POMS and be subject to discipline

for ignoring required agency policy.

15

♦

REASONS FOR GRANTING THE PETITION

I.

Question One

As the Court in Bence said, in condemning the

“conduct unbecoming” standard:

The subjectivity implicit in the language of

the rule permits police officials to enforce

the rule with unfettered discretion, and it is

precisely this potential for arbitrary enforce­

ment which is abhorrent to the Due Process

Clause. Further, where, as here, a rule

contains no ascertainable standards for

enforcement, administrative and judicial

review can be only a meaningless gesture.

And as the California Court of Appeals said in the

California School Employees case, in similar language:

On its face, the rule proscribes conduct that

is “unbecoming an employee in the public

service.” It is obvious that any apparent [52

Cal. App. 3d 156] limitation on the employee’s

conduct through the use of this qualifying

term is illusory, for “unbecoming” has no

inherent, objective content from which

ascertainable standards defining the

proscribed conduct can be fashioned. Like

beauty, its content exists only in the eye of

the beholder. The subjectivity implicit in

the language of the rule permits district

officials to enforce the rule with unfettered

discretion, and it is precisely this potential

16

for arbitrary enforcement which is abhorrent

to the due process clause.(e.s.)

California School Employees Assn. v. Foothill Community College District, 52 Cal.Rptr.3d 150 (Cal. Ct.

of App., 1st Dist. 1975). The Bence holding, as noted

earlier, simply cannot be squared with the holding of

the Federal Circuit in Petitioner’s case.

The result of such discordant rulings is that

Administrative Law Judges throughout the Federal

Government labor under an uncertain standard of

discipline. This situation is especially pernicious when,

as was the case here, such a standard is applied to

speech.

As Bence said:

Moreover, because this vague rule does abut

on sensitive first amendment freedoms, it may

operate to chill the exercise of those freedoms.

Thus, the Circuit split presented here has

serious implications for SSA ALJs, and

therefore disability benefits claimants

nationwide, and should be resolved.

The Court should resolve this split, and affirm

Bence.

17

II. Question Two

As to Question 2, there is no doubt that the over

1,500 SSA ALJs9 are, as Petitioner noted to the Fed­

eral Circuit, between a rock and a hard place with

respect to their fidelity to POMS.

Are they bound by it, as the First Circuit, a dis­

trict court within the First Circuit, and Social Security

Ruling 13-2p(15)(a) require?

Or is POMS merely advisory, as the Federal

Circuit suggests?

As a result of this dilemma, Petitioner submits

that the ability of SSA AUs to properly apply Agency

policy is chilled.

Because the SSA disability program is one of

nationwide application, the chilling effect caused by

the decision of the Federal Circuit has nationwide

implications and presents a substantial federal

question.19

This Court should dispel the confusion surrounding

this important issue.

9 See https://www.ssa.gov/appeals/about_us.html.

19 The Federal Circuit has nationwide jurisdiction over claims

involving Federal employees. CAFC, Court Jurisdiction, https://cafc.

uscourts.gov/home/the-court/about-the-court/court-jurisdiction/

18

*

CONCLUSION

The Petition for a writ of certiorari should be

granted.

Respectfully submitted,

Leonard Cooperman

Petitioner Pro Se

178 Juniper Ridge Drive

Feeding Hills, MA 01030

(786)252-7615

LennyJ 1952@yahoo.com

August 2, 2023