United States Court of Appeals
for the Federal Circuit
__________________________
VICTORIA V. SALMON,
Petitioner,
v.
SOCIAL SECURITY ADMINISTRATION,
Respondent.
__________________________
2011-3029
__________________________
Petition for review of the Merit Systems Protection
Board in case no. DC0432090732-I-1.
__________________________
Decided: December 9, 2011
__________________________
PHILLIP R. KETE, of Washington, DC, argued for peti-
tioner.
HILLARY A. STERN, Senior Trial Counsel, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, argued for respon-
dent. With her on the brief were TONY WEST, Assistant
Attorney General, JEANNE E. DAVIDSON, Director, and
BRIAN M. SIMKIN, Deputy Director.
__________________________
SALMON v. SSA 2
Before DYK, CLEVENGER, and REYNA, Circuit Judges.
CLEVENGER, Circuit Judge.
Victoria V. Salmon, a former service representative
with the Social Security Administration (“SSA”), has
asked this court to review the final decision of the Merit
Systems Protection Board (“the Board”) affirming SSA’s
removal of her from her position. Salmon v. Soc. Sec.
Admin., No. DC-0432-09-0732-I-1, slip op. (M.S.P.B. Sept.
30, 2010) (nonprecedential) [hereinafter Board Opinion].
Because we find no error in the Board’s decision, we
affirm.
I
Ms. Salmon worked for SSA as a service representa-
tive. Her duties were to assist SSA beneficiaries and
others with questions about SSA programs and proce-
dures in person, by telephone, and by written correspon-
dence.
The main events of this case began in late 2008 and
ended with Ms. Salmon’s removal in mid-2009. At the
outset of that period, in September 2008, Ms. Salmon met
with her supervisor and received her Performance Plan
for 2009. This was pursuant to SSA’s employee perform-
ance review system, “PACS” (Performance Assessment
and Communications System). See PACS, J.A. 222. The
Performance Plan, which Ms. Salmon signed, set forth
various performance targets for Ms. Salmon in the coming
year.
As the year proceeded, however, Ms. Salmon was on
several occasions called into further meetings with her
supervisor. At these meetings, the supervisor informed
Ms. Salmon that her work was considered deficient. Ms.
Salmon traveled through escalating periods of review and
evaluation as set forth in PACS. During a forty-day
3 SALMON v. SSA
“Performance Assistance” period and a four-month “Op-
portunity to Perform Successfully” (“OPS”) period, a
mentor attached to Ms. Salmon observed her work, noted
deficiencies, gave corrective instruction, and reported
back to Ms. Salmon’s supervisor. In between the two
periods, Ms. Salmon’s supervisor relayed to Ms. Salmon
the mentor’s observations and conclusions, noted where
Ms. Salmon’s performance was deficient, and gave in-
struction about what ought to have been done in each
observed situation. But at the end of the OPS period in
July 2009, the supervisor concluded that the situation
was beyond repair. With the consent of the local District
Manager, the supervisor removed Ms. Salmon from her
position.
Ms. Salmon appealed to the Board. The Administra-
tive Judge assigned to the case affirmed the removal.
Init. Dec., Salmon v. Soc. Sec. Admin., No. DC-0432-09-
0732-I-1, slip op. (M.S.P.B. Feb. 12, 2010), petition for
review denied, slip op. (M.S.P.B. Sept. 30, 2010). The
Board agreed. Board Op. Ms. Salmon timely petitioned
this court for review. This court has jurisdiction over
petitions for review of Board decisions. 5 U.S.C. §
7703(b)(1); 28 U.S.C. § 1295(a)(9).
II
This court reviews final decisions of the Board to see
if they are arbitrary, capricious, an abuse of discretion,
not in accordance with the law, or unsupported by sub-
stantial evidence. 5 U.S.C. § 7703(c); Sandel v. Office of
Pers. Mgmt., 28 F.3d 1185, 1186 (Fed. Cir. 1994). Our
review of the Board’s legal determinations is de novo.
Sandel, 28 F.3d at 1186.
SALMON v. SSA 4
III
Ms. Salmon argues that the PACS system, as applied
to her, is unlawful. Her attack has three aspects. First,
Ms. Salmon argues that PACS fails Congress’s require-
ment that federal agencies’ performance appraisal sys-
tems evaluate employee job performance on the basis of
objective criteria “to the maximum extent feasible.”
Second, she argues that the performance standards
applied to her did not meet statutory requirements for
employee participation in their development. And third,
she argues that SSA failed to carry its burden to show
that its use of PACS was approved by the Office of Per-
sonnel Management.
A
Ms. Salmon’s main allegation is that SSA used unlaw-
fully-subjective criteria to evaluate her performance. The
relevant statute reads:
(b) Under regulations which the Office of
Personnel Management shall prescribe,
each performance appraisal system shall
provide for—
(1) establishing performance standards
which will, to the maximum extent feasi-
ble, permit the accurate evaluation of job
performance on the basis of objective cri-
teria (which may include the extent of
courtesy demonstrated to the public) re-
lated to the job in question for each em-
ployee or position under the system;
(2) as soon as practicable, but not later
than October 1, 1981, with respect to ini-
tial appraisal periods, and thereafter at
the beginning of each following appraisal
5 SALMON v. SSA
period, communicating to each employee
the performance standards and the critical
elements of the employee’s position;
(3) evaluating each employee during the
appraisal period on such standards . . . .
5 U.S.C. § 4302(b)(1)–(3) (2006). Ms. Salmon emphasizes
that subsection (b)(1) imposes a duty on agencies to
evaluate employee performance using “objective” criteria
“to the maximum extent feasible.”
Ms. Salmon points to her 2009 Performance Plan as
purportedly failing to satisfy section 4302(b). The plan
laid out four “critical elements” of Ms. Salmon’s position:
Interpersonal Skills, Participation, Demonstrates Job
Knowledge, and Achieves Business Results. Each of these
“elements” was accompanied by seven to nine elaborating
bullet points. For example, element 3 (“Demonstrates Job
Knowledge”) included bullets such as “Effectively applies
knowledge and skills to meeting customer needs and
expectations”; “Contributes to the success of organiza-
tional operating plans by producing high-quality work
results”; and “Maintains current knowledge of SSA pro-
grams, procedures and systems through office training
and review of policy and procedural updates, such as daily
PolicyNet postings.” Salmon 2009 PACS Performance
Plan, J.A. 95, 96. Ms. Salmon argues that these metrics,
and others like them in the 2009 plan and the various
memoranda chronicling Ms. Salmon’s path to removal,
are not sufficiently “objective” to meet the requirements of
section 4302(b). She would prefer, for example, numerical
standards—e.g., “no more than x errors in time period
y”—or some other standards of more exact application.
This court addressed the requirements of section
4302(b) in Wilson v. Department of Health & Human
Services, 770 F.2d 1048 (Fed. Cir. 1985). There, as here,
SALMON v. SSA 6
removed employees argued that the standards applied to
them were insufficiently objective. In addressing the
employees’ arguments, this court specifically rejected the
suggestion that the term “objective criteria” in subsection
(b)(1) binds the government to use only “precise quantita-
tive or numerical standards.” Wilson, 770 F.2d at 1052.
Wilson required only that “a standard should be suffi-
ciently precise and specific as to invoke a general consen-
sus as to its meaning and content.” Id. Here, we think
that the standards themselves were sufficiently objective.
Ms. Salmon argues that the standards were not suffi-
ciently objective because “if [a] quantitative standard . . .
is more based on objective criteria than [a] non-
quantitative standard, the former must be used.” Pet. Br.
41. But as we said in Wilson, the statute does not require
quantitative standards. It requires only that the stan-
dards be “sufficiently precise and specific,” which, as
explained below, they are here. 770 F.2d at 1052.
Further, Wilson clarified that the section 4302(b)
analysis is not confined to the written standard. The
efforts of a supervisor to instruct the employee on how
best to satisfy the standard also mattered. By such
instruction, “[t]he standard was [ ] fleshed out and im-
plemented in detail.” Id. at 1056; see also DePauw v. U.S.
Int’l Trade Comm’n, 782 F.2d 1564, 1566 (Fed. Cir. 1986).
In this case, Ms. Salmon’s supervisor gave direct, pre-
cise feedback on the deficiencies in Ms. Salmon’s work
and clear instruction on how to remedy them. In Febru-
ary of 2009, both women signed an OPS memorandum,
prepared by the supervisor, that set forth over thirty case
studies, each describing some error in Ms. Salmon’s
conduct and stating what should have been done. And, as
discussed, the supervisor provided Ms. Salmon with a
mentor to provide guidance and correction during the
subsequent OPS period.
7 SALMON v. SSA
In light of this record, we see no error in the Board’s
conclusion that the performance standards applied to Ms.
Salmon met the requirements of section 4302(b). Those
standards, by which we mean the 2009 Performance Plan
in light of the supervisor’s efforts at instruction, were
clear, precise, and specific enough to be “objective.” In
other words, they were sufficient to invoke a general
consensus among reasonable people in Ms. Salmon’s
position as to their meaning and content. We therefore
find no basis for reversal in the standards’ level of objec-
tivity.
B
Ms. Salmon next argues that SSA, in its adoption of
PACS, contravened the “employee participation” require-
ment of section 4302(a):
(a) Each agency shall develop one or more
performance appraisal systems which—
(1) provide for periodic appraisals of
job performance of employees;
(2) encourage employee participation
in establishing performance stan-
dards; and
(3) use the results of performance ap-
praisals as a basis for training, re-
warding, reassigning, promoting,
reducing in grade, retaining, and re-
moving employees.
5 U.S.C. § 4302(a) (2006). Ms. Salmon argues that PACS
“did not provide for and did not result in employee par-
ticipation [in establishing performance standards],” and
from this argues that its use by SSA is unlawful. Pet. Br.
59. Throughout her brief and at oral argument, Ms.
SALMON v. SSA 8
Salmon emphasized her belief that section 4302(a) re-
quired SSA to solicit and consider an employee’s input in
the development of her own performance standards. She
points out the absence of evidence in the record that SSA
ever allowed employees to participate in the establish-
ment of performance standards under PACS, including
the standards associated with her own position. Id. at 16.
The government responds that Ms. Salmon misunder-
stands the meaning of section 4302(a)’s “employee par-
ticipation” requirement. It denies that this section
required SSA to guarantee that “each individual employee
could participate in the development of the performance
standards that would apply to his or her position.” Gov’t
Br. 20. The government reads the section as requiring
only that employees have input into the larger process
under which specific standards would be developed and
communicated. The government points out that the
PACS system was proposed to the American Federation of
Government Employees (AFGE) in 2005 and was ap-
proved as part of the collective bargaining agreement
between SSA and AFGE. See id. The government argues
that this satisfied section 4302(a).
Congress tasked the Office of Personnel Management
with promulgating regulations in this area. 5 U.S.C. §
4305 (2006). The OPM regulations place final authority
for performance standards with the agency:
Performance standard means the
management-approved expression of the
performance threshold(s), requirement(s),
or expectation(s) that must be met to be
appraised at a particular level of perform-
ance. . . .
9 SALMON v. SSA
5 C.F.R. § 430.203 (2011) (second emphasis added). The
legislative history also strongly suggests that this was
what Congress intended:
The section [§ 4302] specifically encour-
ages employee participation in establish-
ing performance objectives. Experience
has shown that doing so motivates em-
ployees to accomplish the objectives.
Management will have the ultimate re-
sponsibility under this section, however, to
establish the performance standards.
S. Rep. No. 95-969, at 41 (1978), reprinted in 1978
U.S.C.C.A.N. 2723, 2763. From these, we agree with the
government that, while SSA has an obligation to seek
employee input into performance standards, the precise
means of such input, and the use to which that input is
put, is within SSA’s discretion.
In this case, as the government points out, PACS was
expressly endorsed in the national agreement between
SSA and the appropriate union of government employees.
See 2005 SSA/AFGE Nat’l Agrmt., art. 21, J.A. 249 (ex-
cerpt). PACS states that employees will be assessed on
the identical performance elements at issue in this case:
Interpersonal Skills, Participation, Demonstrates Job
Knowledge, and Achieves Business Results. See PACS,
sec. 5.3, J.A. 223, 224. PACS also states that employees
will be issued Performance Plans by their supervisors
prior to the start of any appraisal period, at which “expec-
tations” will be discussed and documented by the supervi-
sor. Id. secs. 5.7, 5.8, J.A. at 230. All this was done in
this case.
Assessing these documents, we agree with the Board
that PACS satisfies section 4302(a)’s requirement for
employee participation. We therefore find no grounds for
SALMON v. SSA 10
reversal on the basis of inadequate employee participa-
tion.
C
Finally, Ms. Salmon contends that SSA failed to dem-
onstrate that its use of PACS had been properly endorsed
by OPM. See 5 U.S.C. § 4304(b)(1) (2006) (requiring such
approval for “each performance appraisal system devel-
oped by any agency”).
In 1995, shortly after SSA was spun off from the De-
partment of Health and Human Services, it submitted its
performance appraisal system to OPM. See 1995 OPM
Form 1531, J.A. 139 and 1995 SSA Performance Ap-
praisal Description, J.A. 141. OPM responded by letter,
“We have reviewed the system and determined that it
meets the requirements of 5 CFR part 430 subpart B.
The system is approved.” Ltr. fr. D. Hausser, OPM, to R.
Pierce, SSA (Sept. 29, 1995), J.A. 150. SSA began using
PACS for employee performance appraisal ten years later,
and Ms. Salmon contends that PACS was not covered by
OPM’s 1995 approval.
In Adamsen v. Department of Agriculture, 571 F.3d
1363 (Fed. Cir. 2009), modifying 563 F.3d 1325 (Fed. Cir.
2009), this court held: “If an agency significantly alters a
previously-OPM-approved performance appraisal system,
OPM review of the agency’s modifications is necessary to
achieve compliance with the basic purpose underlying the
OPM-approval requirement.” 571 F.3d at 1364. Ms.
Salmon contends that PACS embodied such modifications;
the government argues that PACS did not.
On the record before us, we agree with the Board that
PACS did not change the obligations of SSA employees to
such an extent that OPM re-review was necessary. The
performance appraisal system description that SSA gave
11 SALMON v. SSA
OPM in 1995 was a framework-type overview, not a
detailed implementation. PACS further developed the
details of SSA’s performance appraisal system, in a man-
ner consistent with the outline provided to OPM.
The regulations promulgated by OPM embrace this
approach, wherein OPM approves a high-level plan and
the agency fills in the details. See 5 C.F.R. § 430.203
(2011) (defining “appraisal system” as a “framework of
policies and parameters” that must be presented to OPM
for review, as opposed to an “appraisal program,” which
comprises “specific procedures and requirements estab-
lished under . . . an agency appraisal system”).
Ms. Salmon has shown no area in which PACS is ma-
terially inconsistent with the framework in SSA’s 1995
submission to OPM. As far as we understand her, Ms.
Salmon argues that PACS fails to satisfy the representa-
tions concerning employee participation that SSA made to
OPM in 1995. As discussed supra, however, we do not
adopt Ms. Salmon’s view that “employee participation”
requires that an employee participate in the development
of her own performance standards. The 1995 submission
stated, “While final authority for establishing perform-
ance plans rests with the appraising officials, employees
and appraising officials should participate jointly in
developing the plans.” 1995 SSA Performance Appraisal
Description, sec. VI.E, J.A. at 145. We thus conclude that
SSA’s negotiation of PACS with the employee union
satisfied that commitment, as it satisfied the require-
ments of section 4302(a). See AJ Op. at 7.
Ms. Salmon also repeats her arguments that PACS
departs from the 1995 submission because PACS fails to
apply “objective criteria,” but we reject this argument for
the reasons already discussed. Supra sec. III.A.
SALMON v. SSA 12
Finally, Ms. Salmon points to a separate proceeding
in which an official who helped develop PACS testified
that until PACS’ adoption, “there was [sic] virtually no
criteria governing performance awards.” L. Watkins, Tr.,
Am. Fed’n of Gov’t Emps. Local 1923, No. BM-2006-R-
0006 (Soc. Sec. Admin. Nov. 13, 2006) at 108:13–17, J.A.
157, 168 [hereinafter Watkins Tr.]; see also Kewley v.
Dep’t of Health & Human Servs., 153 F.3d 1357, 1364
(Fed. Cir. 1998) (recognizing the Board’s discretion to
admit and use hearsay evidence). The official stated that,
prior to PACS, SSA used a “pass/fail” approach, in which
the distribution of performance awards posed something
of a puzzle for supervisors and employees, as compared to
PACS’ “multi-tiered” approach, in which it was easier and
more clear. Watkins Tr. 77:4–18, J.A. at 164. Ms.
Salmon argues that this was a “significant change” in how
performance evaluations were handled, and thus trig-
gered a need for OPM review. We disagree. While PACS
may have differed substantially from its predecessor
program, we see nothing in the proffered testimony indi-
cating that PACS was inconsistent with the 1995 submis-
sion to OPM. Indeed, the 1995 submission specifically
states that implementing “appraisal programs” could use
any of a variety of “summary levels” to assess employee
performance, ranging from a binary “unacceptable/fully
successful” metric to a five-tier system ranging from
“unacceptable” to “outstanding.” 1995 SSA Performance
Appraisal Description, sec. VIII.C, J.A. at 147.
We therefore find no basis on which to reverse the
Board’s conclusion that SSA was not required to re-
submit PACS to OPM for approval.
For the reasons stated herein, the judgment of the
Board is
AFFIRMED
13 SALMON v. SSA
COSTS
No costs.