Floyd J. Adamsen v. Department of Agriculture

United States Court of Appeals for the Federal Circuit
2008-3222
FLOYD J. ADAMSEN,
Petitioner,
v.
DEPARTMENT OF AGRICULTURE,
Respondent.
J. Reid Prouty, Senior Trial Attorney, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, filed a petition for
panel rehearing for respondent. With him on the petition were Tony West, Assistant
Attorney General, Jeanne E. Davidson, Director, and Franklin E. White, Jr., Assistant
Director.
Thomas F. Muther, Jr., Minahan and Muther, P.C., of Denver, Colorado, filed a
response to the petition for petitioner.
Appealed from: Merit Systems Protection Board

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United States Court of Appeals for the Federal Circuit
2008-3222
FLOYD J. ADAMSEN,
Petitioner,
v.
DEPARTMENT OF AGRICULTURE,
Respondent.
Petition for review of the Merit Systems Protection Board decision DE-0432-07-0345-I-1.
ON PETITION FOR PANEL REHEARING
Before RADER, FRIEDMAN, and LINN, Circuit Judges.
FRIEDMAN, Circuit Judge.
ORDER
The government has filed a petition for panel rehearing seeking only a change in
the following sentence in our opinion of April 23, 2009, reported at 563 F.3d 1326, 1331:
“If an agency makes changes to a previously-OPM-approved performance
appraisal system that significantly alters an employee’s performance standards and
obligations, OPM review of those changes is necessary to achieve compliance with the
basic purpose underlying the OPM-approved requirement.”
According to the government, these words “could be read to require OPM approval
for employees’ performance standards. Such a requirement would be inconsistent with
law and would dramatically expand OPM’s duties beyond covering those required by
statute and regulation.” The government requests that we “delete the phrase, ‘that

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2008-3222 2
significantly alter an employee’s performance standards and obligations,’ and replace it
with the word, ‘it.’”
In our opinion, we did not intend even to suggest that OPM approval of employees’
performance standards would be required. It is not. Because of the government’s
concern, however, we think it appropriate to change that language to eliminate any
possible ambiguity suggesting that such OPM approval would be required – although not
in the way the government suggests.
Accordingly, there is substituted for the above quoted language from our opinion,
the following sentence:
“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.”
In all other respects, our opinion remains unchanged.
FOR THE COURT
July 15, 2009 /s/ Daniel M. Friedman
Date Daniel M. Friedman
Circuit Judge
cc: Thomas F. Muther, Jr., Esq.
J. Reid Prouty, Esq.

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