Adamsen v. Department of Agriculture

571 F.3d 1363, 2009 U.S. App. LEXIS 15572, 2009 WL 2031860

Opinion

ON PETITION FOR PANEL REHEARING

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 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.