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.
Thomas F. Muther, Jr., Minahan and Muther, P.C., of Lakewood, Colorado, for
petitioner.
J. Reid Prouty, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Jeanne E. Davidson, Director, and Franklin E. White, Jr., Assistant
Director.
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.
______________________________
DECIDED: April 23, 2009
______________________________
Before RADER, FRIEDMAN, and LINN, Circuit Judges.
FRIEDMAN, Circuit Judge.
A former federal employee challenges the Merit Systems Protection Board
(“Board”)’s affirmance of his removal by the Department of Agriculture (“Department”)
on the grounds that the Board erroneously determined that (1) the Office of Personnel
Management (“OPM”) had approved the Department’s performance appraisal system
under which it had removed him; (2) the Department gave him an opportunity to
demonstrate that his work was acceptable; and (3) his job requirements were feasible.
We conclude that the record is inadequate for us to determine whether OPM had
approved the performance appraisal system under which the removal was effected. We
therefore vacate the Board’s decision insofar as it held that OPM approval had been

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shown, and remand for the Board further to develop the record and to make additional
findings and conclusions on that issue based on the augmented record. We affirm the
Board’s ruling on the other two issues.
I
In 2006 and for a number of years before that, the appellant, Dr. Floyd J.
Adamsen, was a soil research scientist with the Department. He was doing research on
nitrogen fertigation management. As the administrative judge’s opinion stated,
“[f]ertigation is an irrigation process where water and nutrients are mixed together and
then applied to plants.”
Each year Dr. Adamsen was given an annual performance plan and was rated
for his performance during that year. The plan set forth various categories of his work,
which were divided into critical and non-critical elements. For each category, there
were three possible ratings: “exceeds,” “meets,” or “does not meet” the standard “fully
successful.” A significant aspect of an item being “critical” is that a failure to be rated at
least “fully successful” under that item may result in adverse employment action against
the employee, including removal.
Dr. Adamsen’s work for 2005 had been rated “fully successful.”
Dr. Adamsen’s 2006 performance plan included three critical elements, only the
first of which is involved here. Critical Element 1 was headed: Dr. Adamsen
“Conceives, Plans, and Conducts Research.” That item set forth in some detail the
various tasks Dr. Adamsen was required to perform in order to be rated as “fully
successful” under that critical element. One of these was
use ADE and SRFR models to develop fertilizer injection
strategies for furrow irrigation[.]
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As the administrative judge explained, these are “analytical models used to develop
fertigation injection strategies.”
In 2003 Dr. Adamsen had been placed on a performance improvement plan by
his supervisor, Dr. Clemmens. As its title reflects, such a plan is designed to give an
employee whose work has not been satisfactory the opportunity to improve his
performance. Under such a plan, the employee is told the defects in his work and is
closely supervised during the plan. After Dr. Adamsen had completed his performance
improvement plan, Dr. Clemmens rated his performance as “fully successful.”
During his mid-year performance review in July, 2006, Dr. Clemmens told Dr.
Adamsen that he was below “fully successful” on three critical elements, including
Critical Element 1. The following month Dr. Clemmens notified Dr. Adamsen in writing
that his performance on those three critical elements was unacceptable. In that notice,
Dr. Clemmens once again placed Dr. Adamsen on a ninety-day performance
improvement plan.
In describing Dr. Adamsen’s deficiency in Critical Element 1, Dr. Clemmens
stated that “your plans for developing fertigation strategies are … not sufficiently
thorough.” Dr. Clemmens gave Dr. Adamsen three criteria on which his performance
under Critical Element 1 during the plan would be evaluated, and also “reminded” Dr.
Adamsen that he “must complete the requirements of your performance plan for the
current rating period as well.” The three criteria all involved Dr. Adamsen developing
plans for accomplishing his annual tasks. Of particular relevance to this appeal was the
second criterion:
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2. Provide a detailed plan for research on the development
of fertigation strategies, including strategies to be
investigated, the ranges of irrigation systems/variables
considered, and how you will evaluate appropriate strategies
over these range of conditions.
The performance improvement plan did not specifically refer to the requirement
in Dr. Adamsen’s 2006 performance plan that he “use ADE and SRFR models to
develop fertilizer injection strategies.”
On November 15, Dr. Clemmens rated Dr. Adamsen “fully successful” under the
performance improvement plan, which had ended eight days earlier. During November
Dr. Clemmens met informally more than once with Dr. Adamsen and discussed the
need “to get the ADE model working.”
The performance improvement plan had told Dr. Adamsen that he “may also be
subject to demotion or removal without being given another opportunity to improve” if he
did not maintain “fully successful” performance for at least a year from the start of the
plan. The Department reiterated this warning in its November 15, 2006 letter noting Dr.
Adamsen’s successful performance under the plan.
On January 22, 2007, Dr. Clemmens rated Dr. Adamsen’s performance for the
year 2006 “Unacceptable.” After due notice, the Department removed Dr. Adamsen.
The sole basis for that action was Dr. Adamsen’s unacceptable performance of Critical
Element 1, “failure to provide a thorough analysis of fertigation injection strategies.” The
Department found that Dr. Adamsen “fail[ed] to develop acceptable fertigation strategy
recommendations supported by appropriate analysis using ADE and SRFR models
essential to the research assignment.”
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Dr. Adamsen appealed his removal to the Board, which affirmed the
Department’s action. In her initial decision, which became final when the Board denied
review, the Board’s chief administrative judge held that (1) the removal action was taken
pursuant to a performance appraisal plan that OPM had approved; (2) Dr. Adamsen’s
2006 performance plan and particularly Critical Element 1 thereof “established a valid
and reasonable performance standard”; (3) the Department “has proven, by substantial
evidence, that the appellant’s performance was unacceptable in critical element 1
because he failed to use the ADE model in developing fertilizer injection strategies for
furrow irrigation”; (4) “the agency advised the appellant of the required standard for
acceptable performance, provided guidance as to how to obtain that level of
performance, and provided the appellant with a reasonable time to improve his
performance. Thus, I find that the agency provided the appellant with a reasonable
opportunity to demonstrate acceptable performance.” Adamsen v. Dep’t of Agric., DE-
0432-07-0345-I-1, 2007 MSPB LEXIS 6995, at *19-20, 22, 25 (M.S.P.B. Initial Decision
November 8, 2007).
II
Dr. Adamsen contends that his removal was defective because it was not shown
that OPM had approved his agency’s performance appraisal system pursuant to which
he was removed. As explained below, generally OPM must approve such a system
before an agency may use it.
The standards and procedures governing OPM approval of performance
appraisal systems appear uncertain and unclear. We believe it would be helpful to the
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Board and its staff, litigants before it, and government employees generally, if we clarify
and restate the governing standards and principles on these issues.
A. As the Board has stated, Congress provided for agency performance
appraisal systems and their approval by OPM in the Civil Service Reform Act of 1978.
Daigle v. Dep’t of Veterans Affairs, 84 M.S.P.R. 625, 630 (1999).
Under 5 U.S.C. § 4302, federal agencies are required to “develop” performance
appraisal systems that “provide for periodic appraisals of job performance of
employees” and that permit “removing employees who continue to have unacceptable
performance but only after an opportunity to demonstrate acceptable performance.” Id.
§ 4302(a)(1), (b)(6). OPM is required to “review” all performance appraisal systems to
“determine whether [they] meet[]” the statutory requirements. Id. § 4304(b)(1). If it
determines that a system does not do so, it is to “direct the agency to implement an
appropriate system or to correct operations under the system, and any such agency
shall take any action so required.” Id. § 4304(b)(1), (3). Pursuant to statutory rule-
making authority, 5 U.S.C. § 4305, OPM has promulgated regulations that specify the
numerous requirements for such systems, 5 C.F.R. § 430.204, and require it to “review
and approve an agency’s performance appraisal system(s).” 5 C.F.R. § 430.210.
At the outset of its administration of these provisions, the Board required
agencies to show, in every case as part of their defense to challenges to performance-
based adverse actions taken pursuant to performance appraisal systems, that OPM had
approved the system involved. In Daigle, however, the Board ended that requirement.
It explained:
There is no statutory requirement for renewing
approval of an agency’s performance appraisal system once
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in place, and we are unaware of any agency which has not
received OPM approval of its performance appraisal system.
Therefore, we conclude that it is no longer necessary to
perpetuate an outmoded paperwork requirement. However,
if an appellant alleges that there is reason to believe that an
agency is not in compliance with the law, the Board may
require an agency to submit evidence that it has received
OPM approval of its performance appraisal system.
Daigle, 84 M.S.P.R. at 630-31.
In other words, agencies would be required to show OPM approval only if the
employee alleges that “there is reason to believe” that OPM had not done so.
Although Daigle involved a performance-based denial of a within-grade pay
increase, its rationale, ruling, and analysis are equally applicable to other performance-
based adverse actions, including the removal here at issue.
B. The remaining questions are whether and on what basis OPM is required
to approve changes or modifications in an agency’s previously approved system. As
the Board pointed out in Daigle, “[t]here is no statutory requirement for renewing
approval of an agency’s performance appraisal system once in place.” On the other
hand, the policy of requiring OPM approval of performance-appraisal systems also calls
for OPM approval of significant changes in those systems. An OPM regulation requires
agencies to submit to OPM “for approval” both “a description of its appraisal system[s]
… and any subsequent changes that modify any element of the agency’s system(s) that
is subject to a regulatory requirement in this part.” 5 C.F.R. § 430.209(a). OPM has not
further articulated its standards for reviewing changes in previously approved plans.
In Brown v. Department of Labor, 27 M.S.P.R. 255 (1985), which involved an
employee’s removal for unacceptable performance, the Board stated:
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Thus, a review of the August 1981 changes establish that
those changes significantly affected the rights of the
agency’s employees under its performance appraisal
system. Even if we accept Agency Exhibit R-62 as the
system under which appellant was removed, we would
nevertheless find that that system contained substantive
changes which were not approved by OPM in accordance
with the July 7, 1981 OPM approval letter, which requires
OPM review and approval of any subsequent changes
covered by statute or regulation. We find that the changes
made related to the establishment of performance standards
under 5 U.S.C. § 4302(b) and 5 C.F.R. § 430.204 and thus
required OPM approval. Therefore, we find that the agency
failed to show that the modified performance appraisal
system under which it removed appellant was approved by
OPM.
27 M.S.P.R. at 258 (internal citation omitted).
We agree with the Board that the standard should be based on the nature of the
changes. If an agency makes changes to a previously-OPM-approved performance
appraisal system that significantly alter 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.
C. Under the foregoing principles, neither the administrative record nor the
Board’s findings enables us to determine whether OPM was required to approve the
amendments to the Department’s performance appraisal system or whether it approved
the changes in the system under which the removal action was taken against Dr.
Adamsen.
Dr. Adamsen recognizes that, in its letter of September 10, 1986, OPM approved
the Department’s performance appraisal plan that initially covered him. He contends,
however, that thereafter the Department made changes in its plan, which it did not
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submit for OPM approval and which OPM had not approved, and that his removal was
improperly effected under the changed plans.
At the end of the September 10 approval letter, OPM stated:
Any proposed changes to the PMS plans must be submitted
to this office for prior approval if the change would affect a
provision of the plan covered by regulation or law.
The Board’s administrative judge cited the 1986 letter. In that letter OPM
“approved the agency’s performance appraisal plan” and stated that “[t]he agency
updated its performance appraisal plan in 1995, 1998, and 2003.” Initial Decision, 2007
MSPB LEXIS 6995, at *12-13. The administrative judge stated that:
[i]n Daigle the Board noted there was no statutory requirement for
renewing OPM approval of an agency’s performance appraisal
system once it was in place, that [t]he Board has held that a letter
from OPM stating that it had approved the agency’s performance
management system plan satisfies the agency’s burden of
affirmatively showing, by substantial evidence, that it had received
OPM approval before undertaking the personnel action at issue.
Thus, I find the agency has established, by substantial evidence,
that its performance-based action against the appellant was taken
under an OPM-approved performance appraisal plan at the time of
the appellant’s removal.
Id. at * 13 (internal citation omitted).
The administrative judge did not address the questions of what changes the
agency made in its performance appraisal plan or whether those changes also required
OPM approval.
On the record before us, we cannot determine what changes the Department
made in its performance appraisal plan, how significant those changes were, and what
impact, if any, they had on the Department’s determination that Dr. Adamsen’s
performance had been inadequate. We cannot tell whether the Department was
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required to, or did, submit those changes to OPM for approval or whether OPM
approved them. Indeed, without knowing what Dr. Adamsen said about OPM’s alleged
failure to approve the changes in the Department’s plan, we cannot determine whether
his allegation of non-approval satisfied the Daigle standard that he must allege that
there was “reason to believe” that his agency was not in compliance with the law.
Accordingly, we vacate the Board’s finding that the Department’s removal of Dr.
Adamsen was done pursuant to an OPM-approved plan, and remand to the Board for
further development of the record on this issue and to make additional findings and
conclusions in light of the augmented record.
III
A. The Department removed Dr. Adamsen because in conducting his
research he disregarded an instruction from his supervisor, Dr. Clemmens, that he was
to use two specified computer models, known as ADE and SRFR. Dr. Adamsen has
conceded that he did not use the ADE model.
Since the performance improvement plan did not refer to the requirement to use
the ADE model in his research, it follows that Dr. Adamsen’s failure to do so must have
occurred after the plan period ended on November 7, and after Dr. Clemmens informed
him on November 15 that his performance thereunder was “fully successful.” Dr.
Clemmens based his conclusion that Dr. Adamsen had not used the ADE model on a
draft of Dr. Adamsen’s research paper (prepared with two other scientists), which he
submitted in December, after the performance plan period had ended. Presumably his
failure to use that model occurred between November 7, when the performance
improvement plan ended, and the date in December on which he submitted the draft.
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One might question whether the failure to use a particular computer model in
doing research constitutes a valid basis for removing, for unsatisfactory performance,
an employee who apparently had performed satisfactorily for twenty years and had
been given two grade promotions. Fertigation, however, is a highly complex technical
subject, with which we are unfamiliar. If Dr. Clemmens, who apparently is an expert in
the use of the ADE model in the field, believed that use of a particular computer model
was necessary in the performance of Dr. Adamsen’s research, we have no basis for
concluding that that judgment was improper or that Dr. Adamsen’s failure to follow that
directive did not render his performance unacceptable.
We need not decide those questions, however, since Dr. Adamsen, who was
represented by counsel, has not challenged his removal on that ground. Instead, he
argues only the two substantive grounds on which he challenged his removal before the
Board: (1) that the Department did not give him an opportunity to demonstrate
acceptable performance, and (2) that his removal for failure to use the ADE model was
arbitrary and capricious because (a) he could not use the model in his work and (b) he
believed that he had the right to decide whether or not to use it.
B. An agency may remove an employee for unacceptable performance only
after it has given him or her an “opportunity to demonstrate acceptable performance.” 5
U.S.C. § 4302(b)(6). Under Board precedent, this requires “communication of the
[performance] standards to the employee.” Donaldson v. Dep’t of Labor, 27 M.S.P.R.
293, 297 (1985). Adamsen argues that he was not given “an opportunity to
demonstrate acceptable performance” because the requirements under the
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performance improvement plan did not specifically include using the ADE model in his
research work.
The lack of any explicit reference in Dr. Adamsen’s performance improvement
plan to using the ADE model does not show that he was not given the “opportunity to
demonstrate acceptable performance” that section 4302(b) requires. His obligation to
use the ADE model was “communicat[ed]” to him in his original performance plan for
2006, which explicitly told him he was to use both the ADE and SRFR models. In
November, Dr. Clemmens again “communicat[ed]” to Dr. Adamsen the need “to get the
ADE model working.” Dr. Adamsen concedes that he did not use the ADE model in
2006. Under these circumstances, he cannot validly complain that he was not given an
opportunity to demonstrate acceptable performance.
C. Dr. Adamsen’s justification for his failure to use the ADE model is two-fold.
First, he contends that he could not have used the model because the computer
technician who would operate the program was not available. The Board justifiably
rejected that contention because the record did not support it.
Second, he argues he was not told that he was required to use that model; that
he believed it was his choice whether or not to do so; and that it was his view that use of
the model would not be appropriate in his research. As previously noted, however, he
was explicitly directed to use both the ADE and the SRFR models. In the face of this
instruction, Dr. Adamsen could not justify his failure to use the ADE model on the
ground that he believed the other model was better suited to his work.
CONCLUSION
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2008-3222 13
The part of the decision of the Board that held that OPM had approved the
Department’s performance appraisal plan pursuant to which Dr. Adamsen was removed
is vacated, and the case is remanded to the Board for further proceedings on this
question consistent with this opinion. The remaining portions of the Board decision that
Dr. Adamsen has challenged before this court are affirmed.
VACATED IN PART, AFFIRMED IN PART, and REMANDED.

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