Peter R. Henrikson v. United States

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
PETER R. HENRIKSON,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2025-1118
______________________
Appeal from the United States Court of Federal Claims
in No. 1:21-cv-01899-EDK, Judge Elaine Kaplan.
______________________
Decided: March 31, 2026
______________________
J ASON E. P ERRY , Law Office of Jason Perry, LLC, Wel-
lington, FL, argued for plaintiff-appellant.
EVAN WISSER, Commercial Litigation Branch, Civil Di-
vision, United States Department of Justice, Washington,
DC, argued for defendant-appellee. Also represented by
ERIC P. BRUSKIN, P ATRICIA M. MCCARTHY , BRETT SHUMATE.
______________________
Before T ARANTO, CLEVENGER , and STOLL , Circuit Judges.
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HENRIKSON v. US 2
T ARANTO, Circuit Judge.
Peter R. Henrikson, after an extensive military career
as a pilot, was serving in the Air Force Reserve in a position
in which he was classified as a “Generalist Pilot” until he
shifted to inactive status in 2016. This case, as now pre-
sented on appeal, involves his effort to secure disability-re-
tirement pay specifically based on sinusitis incurred
during his service. Mr. Henrikson sought correction of his
records to list sinusitis as an unfitting condition preventing
him from performing the duties of a Generalist Pilot, but
the Air Force Board for Correction of Military Records
(Board) determined that Mr. Henrikson’s sinusitis did not
prevent him from performing his duties in his Generalist
Pilot position because his duties were administrative in na-
ture and did not include flying. Mr. Henrikson sought re-
view in the United States Court of Federal Claims (Claims
Court), which remanded to the Board for further consider-
ation and explanation. Henrikson v. United States, 162
Fed. Cl. 594, 597, 610 (2022) (Henrikson I). On remand,
the Board again found that Mr. Henrikson had not shown
that his duties in his final service position (with a Gener-
alist Pilot classification) included flying or that his sinusi-
tis prevented him from performing non-flying duties, and
the Claims Court affirmed the Board’s decision. Henrikson
v. United States, 173 Fed. Cl. 46, 54–56 (2024) (Henrikson
II). On Mr. Henrikson’s appeal to us, we affirm.
I
In 1994, Mr. Henrikson entered service in the U.S. Ma-
rine Corps Reserve. See J.A. 253; Henrikson II, at 48 n.1.
After four years, he transferred to the U.S. Air Force, in
which he served on active duty as an F-16 pilot until 2008.
J.A. 252–53; see Henrikson II, at 48 n.1. In 2008, Mr. Hen-
rikson transferred to the Minnesota Air National Guard, in
which he served as a pilot in the Active Guard and Reserve
Program. J.A. 381; see Henrikson II, at 48 n.1. In July
2012, he shifted to the Air Force Reserve, holding a position
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HENRIKSON v. US 3
for which he had a Generalist Pilot classification, and he
remained in that role until 2016, when he elected, in lieu
of receiving a discharge with severance pay, to be trans-
ferred to the Inactive Status List Reserve Section. J.A.
381–82; J.A. 215; see Henrikson II, at 48 n.1.
Mr. Henrikson developed several health conditions
during his service for which he sought disability ratings
even before his 2016 discharge. In 2014, after he was re-
ferred to a Medical Evaluation Board (MEB), the MEB
identified three conditions that may have affected his abil-
ity to perform at work, including—the only one at issue
here—“Sinusitis/Rhinitis” (hereafter simply sinusitis).
J.A. 279; see Henrikson II, at 48–49. In 2015, both an in-
formal and a formal Physical Evaluation Board (PEB) were
convened (the formal PEB at Mr. Henrikson’s request), and
neither PEB assigned a disability rating to Mr. Henrik-
son’s (service-related) sinusitis. See J.A. 64–65; J.A. 93–
94. The same year, the Secretary of the Air Force Person-
nel Council approved the formal PEB’s findings on this is-
sue. See id.; J.A. 102–03; J.A. 117–19.
In 2017, after his 2016 discharge, Mr. Henrikson peti-
tioned the Board to correct his records. He argued that he
should have been retired for three disabilities that ren-
dered him relevantly unfit for service, including his sinus-
itis, and the records should be altered to so declare. See
J.A. 33–51. The Board denied Mr. Henrikson relief in 2019.
J.A. 28–32.
In 2021, Mr. Henrikson brought suit in the Claims
Court to challenge the denial of correction, invoking the re-
tirement-pay provisions of 10 U.S.C. § 1201 et seq., for
which the presence of unfitting conditions matters, and the
Tucker Act grant of jurisdiction and waiver of sovereign
immunity, 28 U.S.C. § 1491. See J.A. 13–14, 20; Henrikson
I, at 604–05. He moved for judgment on the administrative
record, arguing that the Board failed to consider certain ev-
idence and arguments he had presented regarding his
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HENRIKSON v. US 4
sinusitis. See Henrikson I, at 607. The Claims Court
granted Mr. Henrikson’s motion, concluding that the Board
did not adequately explain why his sinusitis and one other
ailment were not unfitting conditions. Id., at 608–09. In
its remand instructions, the Claims Court instructed the
Board to “[i]dentify the duties of [Mr.] Henrikson’s office,
grade, rank, or rating that he could reasonably be expected
to perform and whether piloting aircraft was among those
duties.” Id., at 610. That instruction reflected Mr. Henrik-
son’s contention, at issue here, that flying was the aspect
of his position for which his sinusitis made him unfit.
On remand, the Board considered and granted a disa-
bility rating for the non-sinusitis condition at issue—bring-
ing Mr. Henrikson’s disability rating to 40% even before
considering the sinusitis issue. See J.A. 635, 638. Regard-
ing the sinusitis issue, however, the Board ruled against
Mr. Henrikson, as it had done earlier. It found that Mr.
Henrikson was “not assigned to flying duties” during the
period that he served in the Reserve, and the Board, on
that basis, concluded that piloting aircraft was not one of
his duties as a Generalist Pilot. J.A. 633. On that ground,
the Board declined to raise Mr. Henrikson’s disability rat-
ing to the 60% level he sought.
Mr. Henrikson then challenged the Board’s decision on
remand in an amended complaint before the Claims Court,
arguing that it was arbitrary and capricious for the Board
to conclude that his sinusitis did not prevent him from per-
forming his duties, including piloting F-16 aircraft. See
J.A. 2345–54. Both Mr. Henrikson and the government
moved for judgment on the administrative record. See J.A.
1152; J.A. 2356. The Claims Court granted judgment in
favor of the government, holding that “it was reasonable
for the Board to conclude that preponderant evidence did
not establish that [Mr.] Henrikson’s sinusitis prevented
him from reasonably performing the duties of the non-fly-
ing position he occupied with the Air Force Reserve.” Hen-
rikson II, at 55–56.
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HENRIKSON v. US 5
Mr. Henrikson timely appealed the Claims Court’s de-
cision. J.A. 2355. We have jurisdiction under 28 U.S.C.
§ 1295(a)(3).
II
We review the Claims Court’s legal determinations, in-
cluding its judgment on the administrative record, de novo.
See Cronin v. United States, 765 F.3d 1331, 1334 (Fed. Cir.
2014). Like the Claims Court, we are limited to determin-
ing whether the underlying Board decision was “arbitrary,
capricious, unsupported by substantial evidence, or con-
trary to applicable statutes and regulations.” Id. (quoting
Melendez Camilo v. United States, 642 F.3d 1040, 1044
(Fed. Cir. 2011)). Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion,” Consolidated Edison Co. of New
York v. National Labor Relations Board, 305 U.S. 197, 229
(1938), which may be present even if an opposite conclusion
might also be supportable, Consolo v. Federal Maritime
Commission, 383 U.S. 607, 619–20 (1966).
On appeal, Mr. Henrikson’s sole challenge is that the
Claims Court erred in upholding the Board’s determination
that flying was not part of his duties in his Generalist Pilot
position in the Air Force Reserve. We conclude that the
Board’s finding that flying was not part of his duties is sup-
ported by substantial evidence, and therefore we conclude
that Mr. Henrikson has not identified any reversible error.
A
1. Mr. Henrikson’s primary argument on appeal to
support his contention that his role required flying relies
on the Generalist Pilot portion of the Air Force Specialty
Code (AFSC), within the Air Force Officer Classification
Directory (Classification Directory)—which he says re-
quires the pilot to “maintain flight status.” Henrikson
Opening Br. at 11. He points in particular to section 3.5 of
the Classification Directory’s job description for a
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HENRIKSON v. US 6
Generalist Pilot, which identifies the “[s]pecialty [q]ualifi-
cations” for the role and states: “For award and retention
of this AFSC, current aeronautical rating and no perma-
nent disqualification for aviation service as Pilot.” J.A.
1085 (Classification Directory, October 2014 ed.). But the
relied-on language does not by its terms establish the point
Mr. Henrikson asserts.
The Generalist Pilot description distinguishes, by sep-
arately listing, “2. Duties and Responsibilities” and
“3. Specialty Qualifications.” J.A. 1085. Section 3.5 is
within “[s]pecialty [q]ualifications,” and the most it says,
as relevant here, is that a Generalist Pilot must have a par-
ticular “rating” (“current aeronautical rating”) and not be
permanently disqualified for aviation service. Id. Those
requirements do not mean that flying is actually a duty or
responsibility of any Generalist Pilot (or therefore of Mr.
Henrikson’s position). Notably, the separate paragraph on
“Duties and Responsibilities” does not list actual flying. Id.
(“Monitors, evaluates, and directs flying operations and
training programs. Develops requirements for equipment
and training. Prepares and coordinates budgets. Analyzes
rated manpower requirements and formulates personnel
policies. Prepares, coordinates, and disseminates policy di-
rectives and implementing instructions. Develops contin-
gency plans.”). Moreover, the description notes that
“[t]hese AFSCs are normally only authorized to identify
nonflying positions where designation of a specific pilot
AFSC is not feasible.” Id. (emphasis added). Thus, the
AFSC passage on Generalist Pilot fails to show that flying
was part of Mr. Henrikson’s job, but in fact lends support
to the Board’s finding that it was not.
2. The distinction between having an aeronautical rat-
ing and actually being required to fly as part of a job is re-
inforced by a regulation supplied to this court in response
to an order of the court directing the parties to file supple-
mental briefs to elaborate on a matter that the government
believed Mr. Henrikson raised in his reply brief. See
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HENRIKSON v. US 7
Henrikson Reply Br. at 2–3.1 Air Force Instruction 11-402
addresses the assignment of various aeronautical ratings,
and it indicates that such a rating is available for a pilot in
duties-not-involving-flying [DNIF] status, such a pilot be-
ing “considered to be medically qualified for the purposes
of this table.” S. Appx. 27; see S. Appx. 27–37 (table iden-
tifying mandatory requirements for award of aeronautical
ratings).2 Thus, having an aeronautical rating does not im-
ply having duties that involve flying. See Government
Supp. Br. at 3–4, ECF No. 29. Mr. Henrikson, we note, ap-
parently does not dispute that, at the time of his fitness
evaluation, he held a DNIF status. See J.A. 55 (Medical
Evaluation Board Narrative Summary, dated August 3,
2014, acknowledging Mr. Henrikson’s DNIF status); J.A.
65 (Informal PEB findings, dated March 24, 2015, acknowl-
edging that Mr. Henrikson’s “back issues . . . caused him to
be in DNIF status”).
1 In his supplemental response brief, Mr. Henrikson
noted that, in his reply brief, he cited Air Force Manual 11-
402 (AFMAN 11-402), and not Air Force Instruction 11-402
(AFI 11-402). See Henrikson Supp. Br. at 2, ECF No. 31;
Henrikson Reply Br. at 2–3. Mr. Henrikson does not dis-
pute that the Claims Court made a passing reference to
AFI 11-402 in its consideration of his duties, see Henrikson
II, at 54, and he does not squarely state that the govern-
ment forfeited any reliance on AFI 11-402. See Henrikson
Supp. Br. at 2; see also J.A. 1069–70 (Henrikson’s response
to advisory opinion of the Secretary of the Air Force Per-
sonnel Council, citing AFI 11-402). We will therefore con-
sider the government’s arguments regarding the AFI 11-
402, although we note that it presents just one ground in
support of our affirmance of the Claims Court.
2 “S. Appx.” refers to the supplemental appendix
submitted with the government’s supplemental brief on
March 16, 2026. See ECF No. 30.
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HENRIKSON v. US 8
3. Mr. Henrikson relies on the 2012 Aeronautical Or-
der transferring him from the Minnesota Air National
Guard to the Generalist Pilot Position. See Henrikson
Opening Br. at 12. That Order indicates that Mr. Henrik-
son was going to be “required to perform frequent and reg-
ular flight.” J.A. 2913. But the Claims Court appropriately
did not consider the Order in its decision, because it was
not properly part of the administrative record. See Govern-
ment Response Br. at 10. In any event, the Order states
that it expired on January 15, 2014—before Mr. Henrik-
son’s fitness inquiries began in late 2014 and before he as-
sumed inactive status in 2016. See J.A. 2913. The Order
therefore does not show the existence of flying duties at the
relevant time.
4. Mr. Henrikson also previously relied on Air Force
Instructions on Medical Examination and Standards (AFI
48-123) to demonstrate that his duties required flying. See
J.A. 1157–59 (Henrikson Motion for Judgment on the Ad-
ministrative Record). The Claims Court evaluated that
policy to determine whether it helped show that Mr. Hen-
rikson had an aeronautical rating at the relevant time
(though that is only a step in the inquiry into job duties).
See Henrikson II, at 54. AFI 48-123 states at paragraph
3.1.5 that “[i]nactive flyers that do not receive aviation pay
IAW AFI-402 are not required to maintain Flying Class II
standards.” See id. (emphasis added). The Claims Court
reviewed the record before the Board for evidence that Mr.
Henrikson received aviation pay during his service in the
Air Force Reserve and found none. See id. at 54 & n.5 (not-
ing that Mr. Henrikson’s cited leave-and-earnings state-
ment, reflecting his receipt of incentive pay, see J.A. 1087,
predated his service in the Reserve). Mr. Henrikson has
not shown error in this determination. Moreover, as al-
ready explained, even if Mr. Henrikson’s leave-and-earn-
ings statement were evidence of a current aeronautical
rating as of his fitness inquiry, that would still not support
his contention that flying was a duty of a Generalist Pilot.
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HENRIKSON v. US 9
B
Mr. Henrikson further argues that the Claims Court
applied a subjective analysis to determine the duties in-
volved in the Generalist Pilot role. See Henrikson Opening
Br. at 12–13. Specifically, Mr. Henrikson contends that the
Claims Court failed to analyze the objective duties of Mr.
Henrikson’s “office, grade, rank, or rating” and instead an-
alyzed only the “subjective duties” that he “actually per-
formed.” Id. at 13.
We see no improper subjectivity in the Claims Court’s
(or Board’s) analysis of Mr. Henrikson’s duties. In its deci-
sion, the Claims Court considered the Classification Direc-
tory’s description of the “duties and responsibilities” of the
Generalist Pilot role, which is quoted above. See Henrikson
II, at 53–54. The listed “duties and responsibilities” of a
Generalist Pilot, which do not include piloting aircraft or
anything else requiring flight, is an objective basis for the
characterization of the role as “administrative in nature.”
See Henrikson II, at 54. Even if Mr. Henrikson was re-
quired to maintain some sort of flight qualification, such as
a current aeronautical rating, the substantial evidence
supports the Board’s finding that his duties as a Generalist
Pilot did not require him to fly.
III
We have considered Mr. Henrikson’s remaining argu-
ments and find them unpersuasive. For the foregoing rea-
sons, we affirm the decision of the Claims Court.
The parties shall bear their own costs.
AFFIRMED
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