663 F.3d 1378
Fed. Cir.2011Background
- Salmon worked as a Social Security Administration service representative assisting beneficiaries with SSA programs.
- In Sept 2008 she received a 2009 Performance Plan under PACS with specified performance elements and bullets.
- During 2009 Salmon underwent escalating reviews, including a 40‑day Performance Assistance period and a 4‑month OPS period with a mentor.
- End of OPS in July 2009, supervisor with local District Manager consent removed Salmon from her position.
- Salmon appealed to the Merit Systems Protection Board; the Administrative Judge and the Board affirmed the removal, and the court reviews for legality and substantial evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are PACS standards sufficiently objective? | Salmon: standards are not objective under 4302(b)(1). | Salmon's standards were sufficiently precise and objective. | Standards were objective enough under 4302(b)(1). |
| Does PACS meet employee participation requirements? | Salmon: no individual participation in setting standards. | PACS includes collective input and agency discretion. | PACS satisfies 4302(a) participation. |
| Was OPM approval properly endorsed for PACS? | Salmon: PACS required OPM re-review due to changes since 1995 submission. | PACS did not substantially alter requirements; no re-approval needed. | OPM approval not required to resubmit PACS. |
Key Cases Cited
- Wilson v. Department of Health & Human Services, 770 F.2d 1048 (Fed.Cir.1985) (objective criteria need not be purely quantitative; must be sufficiently precise and specific)
- DePauw v. U.S. International Trade Commission, 782 F.2d 1564 (Fed.Cir.1986) (contextual flesh-out of standards via supervisor instruction)
- Adamsen v. Department of Agriculture, 571 F.3d 1363 (Fed.Cir.2009) (OPM approval when agency significantly alters a system)