Carla Dixon-Johnson v. Office of Personnel Management

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CARLA DIXON-JOHNSON,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2024-1716
______________________
Petition for review of the Merit Systems Protection
Board in No. DA-0842-22-0224-I-1.
______________________
Decided: November 13, 2024
______________________
CARLA DIXON-JOHNSON, Houston, TX, pro se.
ROBERT R. KIEPURA, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
BRIAN M. BOYNTON, ELIZABETH MARIE HOSFORD, PATRICIA
M. MCCARTHY.
______________________
Before LOURIE, SCHALL, and STOLL, Circuit Judges.
Case: 24-1716 Document: 18 Page: 1 Filed: 11/13/2024

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DIXON-JOHNSON v. OPM 2
PER CURIAM.
DECISION
Carla Dixon-Johnson petitions for review of the final
decision of the Merit Systems Protection Board (“Board”)
that affirmed the decision of the Office of Personnel
Management (“OPM”) that (1) following her termination
from the Social Security Administration (“SSA”) during her
probationary period, she was ineligible to receive an
annuity supplement; and that (2) her high-three average
salary under the Federal Employees’ Retirement System
(“FERS”) was correctly calculated. Suppl. App. 9.1 We
have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). For
the reasons set forth below, we affirm.
DISCUSSION
I
Ms. Dixon-Johnson was employed by the federal
government in positions subject to FERS deductions from
June 15, 1993, to January 2, 1998; from February 1, 1998,
to September 30, 2005; and from March 8, 2015, to March
18, 2015. Suppl. App. 10. These three periods add up to a
total of approximately 12 years of total service. Ms. Dixon-
Johnson then was appointed to a position with SSA
effective May 15, 2016. Id. She was terminated from SSA,
effective August 17, 2016, which was during her
probationary period. Id. Her employment with SSA was
also subject to FERS deductions. Id. When Ms. Dixon-
Johnson separated from her position on August 17, 2016,
she met the age and service requirements for immediate
retirement because she was 56 years old and had at least
10 years of federal service. Suppl. App. 11, 21; see 5 U.S.C.
1 Our citation to “Suppl. App.” refers to the
Supplemental Appendix attached to Respondent’s brief.
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DIXON-JOHNSON v. OPM 3
§ 8412(g)(1). Accordingly, Ms. Dixon-Johnson currently is
receiving a retirement annuity.
II
After her separation, Ms. Dixon-Johnson requested
that OPM reevaluate her annuity computation.
Specifically, she asserted that she was entitled to a FERS
annuity supplement and that OPM had not correctly
calculated her high-three average salary. Suppl. App. 10.
By way of background, under 5 U.S.C. § 8421(a)(1) and
(a)(2), an individual who is entitled to a FERS annuity
under certain provisions is “also . . . entitled to an annuity
supplement.” At the same time, “high-three average”
salary refers to a calculation conducted pursuant to 5
U.S.C. § 8401(3). That is, pursuant to 5 U.S.C. § 8415(a),
a retired federal employee is entitled to an annuity based
upon his or her length of service and his or her “average
pay.” The statute defines “average pay” as “the largest
annual rate resulting from averaging an employee’s
. . . rates of basic pay in effect over any 3 consecutive years
of service.” 5 U.S.C. § 8401(3). The resulting figure is
commonly referred to as the “high-three average.” See
Daniel v. Off. of Pers. Mgmt., 469 F. App’x 850, 851 (Fed.
Cir. 2011) (defining “high-three average salary” as “the
highest average salary [the former federal employee]
received over any three-year period of qualifying
employment); see also Grover v. Off. of Pers. Mgmt., 828
F.3d 1378, 1380 (Fed. Cir. 2016) (defining “high-three
average” in the context of the Civil Service Retirement
System).
On February 25, 2022, OPM issued an initial decision
in which it found that Ms. Dixon-Johnson did not qualify
for a FERS annuity supplement. Suppl. App. 10. OPM also
found that Ms. Dixon-Johnson’s high-three average salary
was correctly computed. Id. OPM affirmed these findings
in a reconsideration decision dated March 21, 2022. Suppl.
App. 21–25.
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DIXON-JOHNSON v. OPM 4
Ms. Dixon-Johnson appealed OPM’s reconsideration
decision to the Board. Before the Board, Ms. Dixon-
Johnson advanced the same arguments she had made
before at OPM: that she was entitled to an annuity
supplement and that her high-three average salary was
improperly calculated. Suppl. App. 9–13, 38. The
administrative judge (“AJ”) to whom the appeal was
assigned issued an initial decision on May 26, 2022, in
which she rejected Ms. Dixon-Johnson’s arguments and
affirmed OPM’s reconsideration decision. Suppl. App. 9.
Ms. Dixon-Johnson timely petitioned the Board for review,
and on March 13, 2024, the Board affirmed the AJ’s initial
decision and denied the petition for review. Suppl. App. 2.
The initial decision therefore became the final decision of
the Board. This appeal followed.
III
Our review of the Board’s decision is limited by statute.
We affirm a final decision of the Board unless it is
“(1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.” 5
U.S.C. § 7703(c); see also Hayes v. Dep’t of the Navy, 727
F.2d 1535, 1537 (Fed. Cir. 1984).
IV
On appeal, Ms. Dixon-Johnson argues that the Board
erred in rejecting her claim that she is entitled to an
annuity supplement and her claim that, when OPM
determined her retirement annuity, it improperly
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DIXON-JOHNSON v. OPM 5
calculated her high-three average salary. Appellant’s
Informal Br. 1.2 We address these contentions in turn.
A
Entitlement to an annuity supplement is provided by
statute. See § 5 U.S.C. § 8421(a). In that regard,
§ 8421(a)(1) states that individuals who receive their
annuity “under subsection (a), (b), (d)(1), or (e) of section
8412, or under section 8414(c)” are entitled to an annuity
supplement. Ms. Dixon-Johnson is not entitled to an
annuity supplement under § 8421(a)(1) because she is not
entitled to an annuity under any of the enumerated
subdivisions of § 8412 or under § 8414(c). Those provisions
apply to employees who separate with 30 years of service
(§ 8412(a)), after age 60 with 20 years of service (§ 8412(b)),
or after having served a certain number of years as a law
enforcement officer (§ 8412(d)(1)), an air traffic controller
(§ 8412(e)), or a military technician (§ 8414(c)).
Alternately, § 8421(a)(2) states that individuals who
receive their annuity “under section 8412(f), or under
subsection (a) or (b) of section 8414,” and who are a certain
minimum age are entitled to an annuity supplement.
Provisions § 8412(f), § 8414(a), and § 8414(b) each pertain
to annuities for individuals who completed at least 20 years
of service, and thus do not apply to Ms. Dixon-Johnson. In
contrast, Ms. Dixon-Johnson is receiving her annuity
under 5 U.S.C. § 8412(g)(1). That provision states that
“[a]n employee or Member who is separated from the
service after attaining the applicable minimum retirement
age under subsection (h) and completing 10 years of service
2 Our citations to Appellant’s Informal Brief refer to
the page numbers generated by this court’s CM/ECF
system.
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DIXON-JOHNSON v. OPM 6
is entitled to an annuity.”3 Because Ms. Dixon-Johnson
does not receive her annuity under any of the provisions
listed in § 8421(a)(1) or (2), the Board did not err in
affirming OPM’s denial of Ms. Dixon-Johnson’s request for
an annuity supplement.
B
As she did before the Board, Ms. Dixon-Johnson argues
that OPM erred by not using her three highest salaries of
$51,520, $46,823, and $44,970 to calculate her monthly
retirement payment. Appellant’s Informal Br. 4.4 She
argues that her high-three average salary should be
calculated simply by averaging the three highest basic
salary amounts she earned. Appellant’s Informal Br. 4. As
the Board noted in its decision, however, Ms. Dixon-
Johnson did not serve a full year for each of the three salary
amounts. She does not dispute this on appeal.
The Board applied 5 U.S.C. § 8401(3) to conclude that,
to calculate her average pay, her salary amounts had to be
weighed depending on how long she was receiving each
rate of pay. Suppl. App. 12. This was the correct approach.
3 At the time of her separation in August of 2016, Ms.
Dixon-Johnson had 12 years, 6 months, and 7 days of
service. At that time, she was 56 years old. She therefore
had attained the applicable minimum retirement age set
forth in 5 U.S.C. § 8412(h)(1)(C): “for an individual whose
date of birth is after December 31, 1952, and before
January 1, 1965, 56 years of age.”
4 These are the figures Ms. Dixon-Johnson asserted
before OPM and the Board. Supp. Appx. 12, 30. On appeal,
however, Ms. Dixon-Johnson has revised these figures
downward to $44,970, $43,390, and $41,890. This
downward revision in no way affects our disposition of the
case. We therefore rely on the higher figures asserted
before OPM and the Board.
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DIXON-JOHNSON v. OPM 7
Section 8401(3) explicitly states that each rate must be
“weighted by the period it was in effect.” The Board
therefore did not err in affirming OPM’s calculation of Ms.
Dixon-Johnson’s high-three salary.5
CONCLUSION
For the foregoing reasons, we affirm the final decision
of the Board.
AFFIRMED
COSTS.
No costs.
5 In the final paragraph of her brief, Ms. Dixon-
Johnson appears to argue that she was improperly
separated from her position with SSA. Appellant’s
Informal Br. 6. This issue was not raised before the Board,
however. Therefore, it is not properly before this court on
appeal. See Sistek v. Dep’t of Veterans Affs., 955 F.3d 948,
953 n.1 (Fed. Cir. 2020).
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