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 petitioner. 

HILLARY A. STERN, Senior Trial Counsel, Commercial 

Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent. 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30, 2010) (nonprecedential) [hereinafter Board Opinion].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 representative. Her duties were to assist SSA beneficiaries and 

others with questions about SSA programs and procedures in person, by telephone, and by written correspondence.

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 performance 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 “Opportunity 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 instruction 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 Administrative 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 substantial 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 requirement that federal agencies’ performance appraisal systems 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 Personnel Management. 

A 

Ms. Salmon’s main allegation is that SSA used unlawfully-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 feasible, permit the accurate evaluation of job 

performance on the basis of objective criteria (which may include the extent of 

courtesy demonstrated to the public) related to the job in question for each employee or position under the system; 

(2) as soon as practicable, but not later 

than October 1, 1981, with respect to initial 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 organizational operating plans by producing high-quality work 

results”; and “Maintains current knowledge of SSA programs, 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 quantitative or numerical standards.” Wilson, 770 F.2d at 1052. 

Wilson required only that “a standard should be sufficiently precise and specific as to invoke a general consensus 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 sufficiently objective because “if [a] quantitative standard . . . 

is more based on objective criteria than [a] nonquantitative 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 standards 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 implemented 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, precise feedback on the deficiencies in Ms. Salmon’s work 

and clear instruction on how to remedy them. In February 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 objectivity. 

B 

Ms. Salmon next argues that SSA, in its adoption of 

PACS, contravened the “employee participation” requirement 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 standards; and 

(3) use the results of performance appraisals as a basis for training, rewarding, reassigning, promoting, 

reducing in grade, retaining, and removing employees. 

5 U.S.C. § 4302(a) (2006). Ms. Salmon argues that PACS 

“did not provide for and did not result in employee participation [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) required 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 establishment of performance standards under PACS, including 

the standards associated with her own position. Id. at 16. 

The government responds that Ms. Salmon misunderstands the meaning of section 4302(a)’s “employee participation” 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 approved 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 performance. . . . 
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 encourages employee participation in establishing performance objectives. Experience 

has shown that doing so motivates employees to accomplish the objectives. 

Management will have the ultimate responsibility 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 (excerpt). 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 “expectations” will be discussed and documented by the supervisor. 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 participation. 

C 

Finally, Ms. Salmon contends that SSA failed to demonstrate 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 developed by any agency”). 

In 1995, shortly after SSA was spun off from the Department 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 Appraisal 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 manner 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 established under . . . an agency appraisal system”). 

Ms. Salmon has shown no area in which PACS is materially 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 representations 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 performance 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 requirements 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-R0006 (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 triggered a need for OPM review. We disagree. While PACS 

may have differed substantially from its predecessor 

program, we see nothing in the proffered testimony indicating that PACS was inconsistent with the 1995 submission 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 resubmit PACS to OPM for approval. 

For the reasons stated herein, the judgment of the 

Board is 

AFFIRMED 
13 SALMON v. SSA

COSTS

No costs.