Peter E. Gersten v. United States

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
PETER E. GERSTEN,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2025-1233
______________________
Appeal from the United States Court of Federal
Claims in No. 1:24-cv-00288-LAS, Senior Judge Loren A.
Smith.
______________________
Decided: April 6, 2026
______________________
JOSEPH WILKINSON, II, Tully Rinckey PLLC, Washing-
ton, DC, argued for plaintiff-appellant.
RETA EMMA BEZAK, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, argued for defendant-appellee. Also
represented by STEVEN JOHN GILLINGHAM, PATRICIA M.
MCCARTHY, YAAKOV ROTH; JESSICA VASIL, United States
Air Force, Joint Base Andrews, MD.
______________________
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GERSTEN v. US 2
Before DYK, SCHALL, and PROST, Circuit Judges.
DYK, Circuit Judge.
Peter Gersten appeals a decision by the Court of Fed-
eral Claims (“Claims Court”) dismissing his complaint on
the grounds of nonjusticiability and for failure to state a
claim. We conclude that the Air Force Board for the
Correction of Military Records’ (the “Board’s”) decision
denying relief is justiciable, at least in part. On the
merits, we conclude that the Board’s decision regarding
the Secretary’s decision to retire Mr. Gersten at the grade
of O-6 was not arbitrary and capricious and was support-
ed by substantial evidence. Accordingly, we conclude
that, although the complaint should not have been dis-
missed, the government was nonetheless entitled to
judgment on the administrative record. We therefore
vacate the dismissal and remand with instructions to
enter judgment on the administrative record in favor of
the government.
BACKGROUND
I
Section 1370 of Title 10 governs the retirement grade
of regular commissioned officers. That statute states that
an officer “shall be retired in the highest permanent grade
in which such officer is deemed to have served on active
duty satisfactorily.” 10 U.S.C. § 1370(a)(1). “The deter-
mination of satisfactory service” is made by “the Secretary
of the military department concerned, if the officer is
serving in a grade at or below the grade of major general.”
§ 1370(a)(2)(A). “If the Secretary of a military depart-
ment . . . determines that an officer committed miscon-
duct in a lower grade” (than the highest permanent grade
in which the officer is determined to have served on active
duty satisfactorily), “such Secretary may deem the officer
to have not served satisfactorily in any grade equal to or
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GERSTEN v. US 3
higher than such lower grade” and “the grade next lower
to such lower grade shall be the retired grade of the
officer.” § 1370(a)(3).
Department of the Air Force Instruction 36-3203
(“AFI 36-3203”), dated September 18, 2015, which was
binding at the time of Mr. Gersten’s retirement, offers
additional guidance on when an officer in the Air Force is
deemed to have served satisfactorily. Paragraph 7.6.2.2
provides factors that the Secretary may consider when
making a retirement grade determination, including “the
nature and length of the officer’s improper conduct, the
impact the conduct had on military effectiveness, the
quality and length of the officer’s service in each grade at
issue, past cases involving similar conduct, and the rec-
ommendations of the officer’s command chain.” That
same paragraph also notes that “[a] single incident of
misconduct can render service in a grade unsatisfactory
despite a substantial period of otherwise exemplary
service.” AFI 36-3203, para. 7.6.2.2.
II
Mr. Gersten retired from the United States Air Force
in 2020 after serving for over 30 years. He was promoted
in 2007 to Colonel at the grade of O-6, then in 2011 to
Brigadier General at the grade of O-7, and finally in 2015
to Major General at the grade of O-8.
In 2019, Mr. Gersten was relieved of his command af-
ter his superiors learned he had engaged in an inappro-
priate physical relationship with a subordinate officer
while serving as a Major General. A Secretary of the
United States Air Force/Inspector General (“SAF/IG”)
investigation was subsequently instituted based on two
allegations against Mr. Gersten: (1) that in 2018 he
engaged in an improper personal relationship with a
subordinate in his command, in violation of Article 134,
Adultery, of the Uniform Code of Military Justice
(“UCMJ”); and (2) that when he served at the grade of O-7
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GERSTEN v. US 4
he “engaged in inappropriate personal relationships with
multiple women, which seriously compromised his stand-
ing as an officer, in violation of Article 133, Conduct
Unbecoming an Officer and Gentleman, of the UCMJ.
J.A. 15.1 The SAF/IG concluded in a report that both
allegations were substantiated.
Based on the SAF/IG report, Mr. Gersten’s command-
er imposed nonjudicial punishment and recommended
that he be retired at the grade of O-7. The Secretary
directed that an Officer Grade Determination (“OGD”)
board be convened to make a recommendation on
Mr. Gersten’s retirement grade. The OGD board, and the
Air Force Personnel Council, concurred with
Mr. Gersten’s commander and recommended that he be
retired at the grade of O-7. The Secretary concluded that
Mr. Gersten did not serve satisfactorily at the grade of O-
7 based entirely on the findings from the SAF/IG investi-
gation and decided to retire him at the grade of O-6
pursuant to 10 U.S.C. § 1370. Mr. Gersten was dis-
charged honorably on December 31, 2020. He was not
provided with a copy of the Secretary’s written decision at
that time.
On May 14, 2023, Mr. Gersten petitioned the Board to
correct his records to reflect a retirement grade of O-7, not
O-6. Mr. Gersten did not challenge the Secretary’s deci-
sion that he did not serve satisfactorily at the grade of O-8
because of his relationship with a subordinate officer. In
his written submission to the Board, Mr. Gersten did not
request a copy of the Secretary’s decision or argue that
the government should have provided him with a copy of
the Secretary’s decision. Rather, Mr. Gersten assumed
the Secretary’s decision was based on the SAF/IG report
and argued that the Secretary’s decision was erroneous
1 Citations to the J.A. refer to the Corrected Joint
Appendix submitted by the parties at Dkt. No. 16.
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GERSTEN v. US 5
because the report did not present substantial evidence
that he had multiple affairs when he held the rank of
Brigadier General (O-7) and because the Secretary de-
parted from the recommendations of the OGD Board. The
Board, citing the SAF/IG report, denied Mr. Gersten’s
petition after finding that the Secretary’s decision was
supported by substantial evidence.
On February 12, 2024, Mr. Gersten filed a Freedom of
Information Act (“FOIA”) request for “[t]he signed memo
or other document in which the Secretary . . . memorial-
ized her decision to retire Mr. Gersten in the rank of
Colonel (O-6) instead of Brigadier or Major General.”
J.A. 96. On February 23, 2024, before receiving the
government’s response to his FOIA request, Mr. Gersten
filed a complaint in the Claims Court seeking an adjust-
ment in his retirement grade from O-6 to O-7 and back
retirement pay. His complaint argued that the Board
lacked substantial evidence that he had affairs with
civilian women while serving at the grade of O-7 and did
not show he violated Article 133 of the UCMJ because his
conduct did not violate a military custom. The govern-
ment filed an administrative record that included the
Secretary’s written decision and moved to dismiss the
complaint, or in the alternative, for judgment on the
administrative record.
On October 29, 2024, the Claims Court granted the
government’s motion to dismiss on the grounds of nonjus-
ticiability and, to the extent that Mr. Gersten’s claim was
justiciable, for failure to state a claim. As to the first
issue, the Claims Court characterized Mr. Gersten’s claim
as seeking review of a routine personnel decision, over
which the military, and specifically the Secretary, has
sole authority. The court thus concluded that
Mr. Gersten’s claim was “inherently nonjusticiable,”
relying primarily on our previous decision in Adkins
v. United States, 68 F.3d 1317 (Fed. Cir. 1995). J.A. 11.
As to the second issue, the Claims Court concluded that to
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GERSTEN v. US 6
the extent Mr. Gersten asked the court to set aside the
Board’s decision finding that Mr. Gersten violated Arti-
cle 133 of the UCMJ, this argument was forfeited because
it was not raised before the Board.
Mr. Gersten timely appeals. We have jurisdiction un-
der 28 U.S.C. § 1295(a)(3).
DISCUSSION
We review whether the Claims Court properly dis-
missed a complaint de novo. Vensure HR, Inc. v. United
States, 119 F.4th 7, 11 (Fed. Cir. 2024).
Mr. Gersten’s appeal presents three issues:
(1) whether his claims are justiciable, (2) whether the
Board’s determination that Mr. Gersten had inappropri-
ate relationships with multiple women while serving at
the grade of O-7 was supported by substantial evidence,
and (3) whether that conduct violated Article 133 of the
UCMJ, including whether his failure to raise this argu-
ment before the Board is excused because the Board did
not provide him with a copy of the Secretary’s decision.
I
First, as to justiciability, Mr. Gersten argues that his
claim is justiciable because he is seeking review of his
retirement paygrade, not a promotion or demotion deci-
sion that is left to the discretion of the military. The
government supports the Claims Court’s decision and
argues that Mr. Gersten’s claim was not justiciable. We
agree with Mr. Gersten, at least in part.
In Fisher v. United States, 402 F.3d 1167 (Fed. Cir.
2005), not cited or discussed in the Claims Court’s deci-
sion, this court held that a claim that a medical disability
should have resulted in medical discharge and retirement
backpay was justiciable. Id. at 1171, 1184. We explicitly
distinguished Adkins, on which the Claims Court relied to
conclude that Mr. Gersten’s claim was not justiciable. Id.
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GERSTEN v. US 7
at 1180–81. As Fisher explained, Adkins concerned “who
should be allowed to serve on active duty, and in what
capacity.” Id. at 1180. Fisher agreed that we “will not
address the merits of . . . the basic question of an individ-
ual’s eligibility to serve the nation as a war fighter,” id.,
but we can review “society’s legal obligations to those who
are no longer within the military forces,” id. at 1182.
Fisher has made clear that retirement claims are not
categorically nonjusticiable.
More recently, in Bader v. United States, 97 F.4th 904
(Fed. Cir. 2024), we addressed whether certain miscon-
duct could form the basis for retirement at a grade lower
than the highest permanent grade served under § 1370,
the same provision at issue here. 97 F.4th at 906. In
Bader, the Secretary retired Col. Bader at the grade of O-
6, instead of O-7, after an Inspector General report con-
cluded that Col. Bader’s conduct violated 5 C.F.R. § 2635.
Id. at 907–08. Col. Bader petitioned the Board to correct
his military records to reflect retirement at the grade of
O-7. Id. at 908. That Board, and subsequently the
Claims Court, denied relief. Id. at 908–09. On appeal to
this court, Col. Bader argued that the record did not
support the finding that his conduct violated 5 C.F.R.
§ 2635. Id. at 911. This court affirmed the Claims Court
after examining the record and determining that substan-
tial evidence supported the finding that Col. Bader violat-
ed 5 C.F.R. § 2635 and that a violation of this regulation
and the statute could support the Secretary’s decision to
retire Col. Bader at the grade of O-6. Id. at 911–15.
Fisher and Bader make clear that to the extent
Mr. Gersten asks a court to review whether substantial
evidence supports the Board’s decision regarding the
Secretary’s decision, it can do so. See Fisher, 402 F.3d
at 1182; Bader, 97 F.4th at 909. To be sure, there may be
aspects of the Secretary’s decision that are nonjusticiable
because they are committed to the Secretary’s discretion.
As Mr. Gersten concedes, this court cannot “weigh estab-
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GERSTEN v. US 8
lished misconduct against his good service.” Appellant’s
Br. 23. But, insofar as Mr. Gersten claims that the
Board’s decision is not supported because there was no
substantial evidence of the conduct alleged, that claim is
justiciable.
II
Mr. Gersten argues that the SAF/IG report does not
provide substantial evidence to support the Board’s
finding regarding his multiple affairs, or that these affairs
violated Article 133. The Claims Court dismissed
Mr. Gersten’s complaint in part because he forfeited the
argument that “the SAF/IG investigation . . . failed to
substantiate a violation of Article 133.” J.A. 11.
With respect to Mr. Gersten’s argument that the
SAF/IG report does not provide substantial evidence that
he engaged in multiple affairs, this argument was proper-
ly raised before the Board and not forfeited. But the
SAF/IG report contains substantial evidence to support
the Board’s finding regarding Mr. Gersten’s relationships
with multiple women while serving at the grade of O-7.
See J.A. 197–205 (describing text messages and witness
statements).
III
As to Mr. Gersten’s argument that these affairs can-
not form the basis for a violation of Article 133, we agree
with the Claims Court that this argument was forfeited,
and we need not determine whether it is justiciable.
Mr. Gersten argues that he did not forfeit this argu-
ment because he was not provided with the Secretary’s
written decision and thus had no notice that she relied on
a determination that Mr. Gersten violated Article 133.
Pursuant to Department of Defense Instruction
1320.04, Enclosure 5: Procedures Specific to O-7 through
O-10 Actions, paragraph 4(c)(3)(j), “[i]f the Secretary of
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GERSTEN v. US 9
the Military Department intends on exercising their
authority to retire a general officer at a lower grade, they
must forward a memorandum . . . to the [Secretary of
Defense] advising of such intent.” J.A. 140. The Secre-
tary’s written decision that Mr. Gersten claims he should
have received is this memorandum.
It is clear that the Board obtained the Secretary’s
memorandum, as the Board’s decision describes the
content of the memorandum. The Board is required to
give applicants “an opportunity to review and comment
on . . . additional information obtained by the Board,”
32 C.F.R. § 865.4(b), and “access to all records considered
by the Board, except those classified or privileged,”
32 C.F.R. § 865.8(b). As there is no evidence that the
Secretary’s decision was classified or privileged, it ap-
pears that the Board should have provided it to
Mr. Gersten in accordance with the regulations. See
J.A. 161.
While it was likely error by the Board not to give
Mr. Gersten the Secretary’s written decision, we conclude
that, by not raising it before the Board, Mr. Gersten
forfeited any argument that the Board erred in this
respect. See Metz v. United States, 466 F.3d 991, 999
(Fed. Cir. 2006). In any event, because Mr. Gerston had
the SAF/IG report, upon which the Secretary relied exclu-
sively for her decision, the Board’s error was harmless.
We also conclude that Mr. Gersten forfeited the ar-
gument that his multiple affairs were not a violation of
Article 133. Based on the information Mr. Gersten had at
the time he filed his petition to the Board (that the
SAF/IG report concluded he had violated Article 133 and
the assumption that the Secretary’s decision relied on the
SAF/IG report), he could have argued that affairs with
civilian women could not substantiate a violation of
Article 133. Instead, his arguments were limited to the
credibility of the testimony supporting the underlying
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GERSTEN v. US 10
factual allegation he had multiple affairs with civilian
women. Given that Mr. Gersten could have, but failed to,
argue that the report did not substantiate a violation of
Article 133, that argument is forfeited.
CONCLUSION
We conclude that Mr. Gersten’s claims are justiciable
at least in part under Fisher and Bader. While it was
likely error for Mr. Gersten not to receive the Secretary’s
written decision earlier than he did, we conclude that
Mr. Gersten forfeited this argument and that this error
was harmless. As to Mr. Gersten’s argument that the
SAF/IG report does not provide substantial evidence for
the Board’s finding regarding his affairs that violated
Article 133, we conclude that the report did provide
substantial evidence of his affairs, but that Mr. Gersten
forfeited any argument with respect to whether his con-
duct could violate Article 133 by not raising it before the
Board. We therefore vacate the dismissal and remand
with instructions to enter judgment for the government
on the administrative record.
VACATED AND REMANDED
COSTS
No costs.
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