[00:00:00] Speaker 04: We will hear argument next in case number 251118, Henriksen, against the United States. [00:00:09] Speaker 04: Mr. Perry. [00:00:11] Speaker 01: Good morning, Your Honors. [00:00:12] Speaker 01: Jason Perry for Major Henriksen, and may it please the court. [00:00:16] Speaker 01: The question in this case is whether an Air Force general pilot needs to be qualified and able to pilot an aircraft. [00:00:23] Speaker 01: The Air Force duty requirements for a general pilot are found in the Air Force officer classification directory. [00:00:31] Speaker 01: And that's at appendix 1005. [00:00:33] Speaker 01: And that language requires that for the award and retention of the AFSC, the duty code, current aeronautical rating, and no permit disqualification for aviation service as a pilot. [00:00:48] Speaker 01: That language clearly requires that the officer [00:00:52] Speaker 01: become rated as a pilot, maintain that rating, that aeronautical rating, and not be disqualified permanently. [00:01:01] Speaker 01: The Air Force Board for Correctional Military Records determined that Major Henriksen was unable to pilot because of his sinusitis. [00:01:09] Speaker 01: What they did not do is apply this regulation to the fitness criteria, which determines whether or not a member has a compensable disability and is able to continue in service due to that disability. [00:01:22] Speaker 04: In your brief, with regard to your argument under 3.5, which I think is your only route, you have two data points, the 3.5 argument and then it's the order when he was transferred, correct? [00:01:36] Speaker 02: Correct, Your Honor. [00:01:37] Speaker 04: Those are the two data points. [00:01:38] Speaker 02: Yes, Your Honor. [00:01:39] Speaker 04: The second data point, the argument is that that applied to an earlier period of time. [00:01:44] Speaker 04: But with regard to the first data point, when you say in your brief it's unclear why the trial judge didn't accept that argument, I thought both the Corrections Board and the trial judge addressed that argument that said 3.5 doesn't apply because the colonel wasn't receiving flight pay. [00:02:07] Speaker 01: I would disagree, Your Honor. [00:02:08] Speaker 04: That was the rationale. [00:02:12] Speaker 01: I would disagree with the point. [00:02:14] Speaker 01: They did make the point that the record did not show he was. [00:02:17] Speaker 04: We can point to the specific language in the decision in Appendix 9. [00:02:25] Speaker 04: This is your AFI 48123 3.15 argument. [00:02:30] Speaker 04: Inactive flyers that don't receive the aviation pay aren't required to maintain the standard. [00:02:36] Speaker 04: When you said in your brief it was unclear why the trial judge, that's the reason why the trial judge rejected your 3.15 argument. [00:02:49] Speaker 04: Point A9. [00:02:52] Speaker 04: Third paragraph from the end, last couple of sentences. [00:02:56] Speaker 04: And the same rationale is present in the corrections board decision. [00:03:06] Speaker 01: I don't see the incentive pay argument at this part, Your Honor. [00:03:09] Speaker 01: Excuse me? [00:03:12] Speaker 01: The incentive? [00:03:15] Speaker 04: Unless I'm wrong, the argument you're making, which is that you're entitled to the current aeronautical ratings under 3.5, that said that doesn't apply because buyers that don't receive aviation pay are not required to maintain those standards. [00:03:33] Speaker 01: It's circular argument, Your Honor. [00:03:37] Speaker 01: In that formulation, every pilot who loses or is disabled would then no longer qualify to be disabled. [00:03:45] Speaker 01: You see? [00:03:45] Speaker 01: If you can't hold the aviation incentive pay because you're disabled, then that would, in that formulation, means that no one would be disabled. [00:04:00] Speaker 04: I'm not sure I'm going to follow that. [00:04:05] Speaker 04: I'd like to address. [00:04:06] Speaker 04: But what I'm saying is when you said it was unclear, it seemed to me it was very clear. [00:04:10] Speaker 04: And the same rationale was presented. [00:04:13] Speaker 04: It was articulated in the board decision. [00:04:19] Speaker 01: So the incentive pay issue is initially evidence for his duties requiring flight duties. [00:04:28] Speaker 01: But his AFSC, his job that the Air Force determined that he was a generalist pilot, requires him to fly. [00:04:35] Speaker 01: That's in the plain language of 3.5. [00:04:39] Speaker 01: So the administrative determination of qualification for aviation incentive career pay, which could be, for several reasons, disrupted. [00:04:48] Speaker 01: You could have a temporary loss of the assignment qualifying for it. [00:04:53] Speaker 01: You could have any number of reasons why you might temporarily lose that. [00:05:00] Speaker 01: But that's not dispositive of the duties of the job, which are to pilot. [00:05:04] Speaker 03: I have a question, though. [00:05:06] Speaker 03: I mean, just to clarify factually what's going on, there is no evidence that during the time that Major Henriksen was a generalist pilot that he was receiving incentive pay. [00:05:21] Speaker 03: Is that true or false? [00:05:23] Speaker 01: So I believe there's an LES, a leave and an earnings statement in the record that carries from a period of his reserve service where he was getting an incentive pay. [00:05:35] Speaker 01: It wasn't an issue that the board, the AFECMR, had before it. [00:05:41] Speaker 01: And in fact, on the initial remand in Herrickson 1, [00:05:45] Speaker 01: The only reason the officer classification directory came in is because after the advisory opinion, and they hadn't addressed it, being my first opportunity to address the lack of discussion of his actual duties, I submitted with my response to the advisory opinion, the excerpt from the Air Force officer's classification directory. [00:06:03] Speaker 01: So there was no real substantive record before the agency at that point, prior to that point, about what the actual requirements were. [00:06:12] Speaker 01: And as the judge below determined, [00:06:15] Speaker 01: The response from the AFPCMR wasn't very direct as to discussing the actual duties required of a generalist pilot. [00:06:25] Speaker 01: Instead, they made the determination that his duties required were administrative in nature. [00:06:30] Speaker 03: Can I ask you, just going back to this same question I had, is the document you're referring to the one at Appendix 1087 [00:06:52] Speaker 01: Yes, Your Honor. [00:06:53] Speaker 03: That has a date that was before transferring into the reserve. [00:07:00] Speaker 01: Yes, Your Honor. [00:07:00] Speaker 01: So Major Hendrickson left active duty. [00:07:03] Speaker 01: He was in a coded F-16 role, moved initially for a brief period of time to the National Guard, and then switched to the Air Force Reserve. [00:07:12] Speaker 01: However, it took an exceedingly long period of time for the Air Force to actually refer him into the disability evaluation system and then finally process a number of years. [00:07:22] Speaker 01: 2014 he stopped flying, 2016 they got around to saying, you can't fly. [00:07:28] Speaker 01: due to your back and to your radiculopathy and to your sinusitis at the MEB level. [00:07:33] Speaker 01: And now we're going to refer you to the disability evaluation system. [00:07:37] Speaker 01: So that dated LES is part of the packet when the Air Force put them through the process. [00:07:43] Speaker 01: That was their own documentation derived as part of that record for the medical evaluation board. [00:07:49] Speaker 01: carrying forward, it took them another couple years after his formal board to finally go through the Secretary of the Air Force Personnel Council appeals and then finally cut him the order placing him originally in the selective reserve until we appealed below and got partial relief up to a retirement finding. [00:08:07] Speaker 01: 2014 stopped flying, 2022 timeframe when he finally got receipt of pay. [00:08:17] Speaker 01: I'd like to address also the language regarding in the note from [00:08:26] Speaker 01: the journalist pilot criteria. [00:08:29] Speaker 01: These AFCs are normally only authorized to identify non-flying positions where designation of a specific pilot AFC is not feasible. [00:08:38] Speaker 01: So I think the distinction here, Your Honors, is that there are positions that don't require actual flight duties, but do require the qualification and the ability to fly. [00:08:50] Speaker 01: And that's what that note, I think, signifies. [00:08:54] Speaker 01: Overall, the general rule is that generalist pilots must maintain, hold, get awarded, maintain, and hold, and have no permit disqualification for flight duties. [00:09:07] Speaker 01: And then there's that subset, in some cases, [00:09:10] Speaker 01: The role won't require a coded flying position, but they still have to be able and qualified to fly. [00:09:18] Speaker 01: So the day-to-day duties may not require flight, but they have to be qualified to fly. [00:09:22] Speaker 04: So you're basically arguing that there's a generalist pilot who has a duty to remain fit to fly even if he's not going to fly? [00:09:29] Speaker 01: Yes, Your Honor, that's correct. [00:09:31] Speaker 04: And that maintains in the AFI 36-3212, which is the... But that's in the light of a requirement of maintaining the fitness, but that only applies if you're being paid. [00:09:43] Speaker 01: The flight pay is a separate administrative category, a separate statute about that, qualifying that. [00:09:49] Speaker 01: It's not related to the 1201, 10 U.S. [00:09:51] Speaker 01: Code 1201 fitness standards. [00:09:53] Speaker 01: The fitness standards are... [00:09:56] Speaker 04: You have two decision makers below who seem to think it does. [00:10:01] Speaker 04: You have the board and the court of federal claims. [00:10:04] Speaker 01: That is my problem, your honor. [00:10:06] Speaker 04: That is your problem. [00:10:11] Speaker 01: I think the plain language of the qualification says must be medically. [00:10:16] Speaker 04: But the other side has pointed to regulations that say that doesn't apply in this circumstance. [00:10:22] Speaker 01: I'd say it doesn't apply to the reward of flight incentive pay. [00:10:25] Speaker 01: But that is an indicator, evidence that came up as to his unfitness. [00:10:30] Speaker 01: But that's not the determinative point. [00:10:32] Speaker 01: You won't see decisions discussing unfitness because of lack of flight pay, or receipt of flight pay, or loss of flight pay. [00:10:40] Speaker 01: It's the actual flight status that matters, the performance of the duties. [00:10:44] Speaker 01: It's not just as a general's pilot. [00:10:45] Speaker 01: It's to all conditions. [00:10:46] Speaker 01: all occupational positions. [00:10:50] Speaker 01: Every AFSC will have their own requirements. [00:10:53] Speaker 01: And so if the black letter says this is a requirement, you must maintain it, and you cannot maintain it for physical problems. [00:11:00] Speaker 01: Therefore, the proper application is that you are unfit. [00:11:04] Speaker 01: And I see my time running into it, so I'd like to reserve my time. [00:11:18] Speaker 00: Morning, Your Honors. [00:11:19] Speaker 00: May it please the Court. [00:11:20] Speaker 00: Before I get into the legal merits, I want to answer Judge Stoll's question and just provide a brief chronology to make sure we're on the same page of the sequence of events here. [00:11:27] Speaker 00: Major Henrickson served on active duty as an F-16 pilot until 2008. [00:11:31] Speaker 00: At that point when he left active duty he went to the Minnesota Air National Guard and he was still certified as a pilot in that role. [00:11:40] Speaker 00: He was still flying F-16s to the extent it was required. [00:11:43] Speaker 00: He was in that role until July of 2012. [00:11:47] Speaker 00: In that period in which he was in the Minnesota Air National Guard there's no dispute he was a pilot, he was receiving aviation pay. [00:11:55] Speaker 00: He then elected to transfer to the Air Force Reserves, which became effective in July of 2012. [00:12:01] Speaker 00: There are records from the board proceedings that show his own testimony before the Physical Evaluation Board stating he decided to move to Texas. [00:12:09] Speaker 00: He wanted to transfer to the Air Force Reserves. [00:12:11] Speaker 00: He specifically chose to take a non-flying position to avoid conflicts with his separate work because he was not full-time in the Air Force. [00:12:20] Speaker 00: At that point, he had other employment. [00:12:22] Speaker 00: At that point, he was given the generalist pilot designation beginning in July of 2012. [00:12:28] Speaker 00: And that was his position until discharge in 2016. [00:12:33] Speaker 00: There are some references made in the briefing about delays in the Air Force processing. [00:12:39] Speaker 00: And maybe that should blur the timelines here a little bit. [00:12:42] Speaker 00: But I want to be clear, Major Henriksen never requested disability retirement from the Air Force. [00:12:49] Speaker 00: What happened is that in processing his discharge from the Minnesota Air National Guard in 2012, he made an application for VA benefits. [00:12:58] Speaker 00: He received those benefits eventually, and then it was the Air Force themselves that made an administrative note that he had in fact received VA benefits because they have procedures to coordinate disability for [00:13:10] Speaker 00: service purposes and disability for VA purposes. [00:13:13] Speaker 00: So Air Force noted his receipt of VA benefits and they initiated on their own the disability evaluation process to see if Major Henriksen was still fit for service in light of his VA conditions. [00:13:26] Speaker 00: That is what initiated this process for the informal physical evaluation board than the physical evaluation board that began that whole process began in mid 2013 that is when the Air Force first notified Major Henriksen that it had observed his VA benefit award and The Air Force notified Major Henriksen that the Air Force would be initiating a review as to his fitness for service He never requested that so I just want to make sure all of those facts are clear because I think they do [00:13:55] Speaker 00: put some clarity on when these events have relevance. [00:13:59] Speaker 00: So the aviation pay is not relevant at all to Major Henriksen's disability determination. [00:14:05] Speaker 00: It was terminated before any of this process started. [00:14:08] Speaker 00: There was no delay on the Air Force's part. [00:14:10] Speaker 00: Major Henriksen never even requested disability retirement. [00:14:13] Speaker 00: It was the Air Force that initiated that process. [00:14:15] Speaker 04: The Major's case turns on his interpretation of 3.5. [00:14:18] Speaker 00: I agree with that, Your Honor. [00:14:20] Speaker 04: It's interesting to me that you didn't address that issue in your brief. [00:14:24] Speaker 00: So we did address what we believe is the dispositive point in 3.5, which is the duties are non-flying duties. [00:14:29] Speaker 00: I can see, Your Honor, there is a hole in the link here. [00:14:34] Speaker 00: And I want to be clear about why that. [00:14:35] Speaker 04: I'm just pointing to your brief at page 10, where you say the only evidence the major points to is the aeronautical order, which we haven't talked about. [00:14:43] Speaker 04: But that's time difference. [00:14:44] Speaker 04: Right. [00:14:45] Speaker 04: So what is your argument? [00:14:48] Speaker 04: His argument is that 3.5 says, notwithstanding the fact that I'm a general pilot, I'm required to maintain this rating that shows that I'm capable of falling. [00:14:57] Speaker 00: That's correct, Your Honor. [00:14:58] Speaker 00: And he's wrong on that. [00:14:59] Speaker 00: So the aeronautical ratings do not require fitness for flying. [00:15:03] Speaker 00: There is a provision that if you are on duties not including flying status, so DNIF status, which Major Henderson unquestionably was, that's in the record, it's not disputed, there is a waiver. [00:15:14] Speaker 04: A waiver as opposed to the lack of pay? [00:15:18] Speaker 00: Correct. [00:15:18] Speaker 04: So what the... You're telling me that the board and the Court of Federal Claims were wrong to rely on the absence of aviation pay? [00:15:27] Speaker 00: No. [00:15:28] Speaker 00: The reason why the board and the Court of Federal Claims ended up relying on the aviation pay is that's how Major Henriksen framed his argument and he put... I'm confused. [00:15:37] Speaker 04: The first question I have is whether or not it's a little late for you to be making this argument. [00:15:42] Speaker 04: No, because the problem... Where is this argument you're now making in your brief? [00:15:46] Speaker 00: None of the parties presented the correct instruction, which is AFI 11402. [00:15:53] Speaker 00: Major Henriksen belatedly added citations to AFI 11402 in his reply brief before this court. [00:16:00] Speaker 00: He had never cited that in his opening brief. [00:16:02] Speaker 00: He had never cited that before the Court of Federal Claims. [00:16:04] Speaker 00: He had never cited that before the board. [00:16:06] Speaker 00: He put it in as a post-appendix citation. [00:16:09] Speaker 00: It is in the appendix. [00:16:10] Speaker 00: I think it's listed as 2919 and 2920 of the filed appendix. [00:16:15] Speaker 00: But he only put in two pages. [00:16:18] Speaker 00: There are other pages in there which make the cross-reference to AFI 48123. [00:16:25] Speaker 00: That's where the language comes in about the aviation pay and about not even to maintain Flying Class II standards. [00:16:30] Speaker 00: That's the language the trial court relied on. [00:16:33] Speaker 00: That's the language the board relied on. [00:16:34] Speaker 00: It's AFI 11402, which makes that expressly linked to the aeronautical rating. [00:16:41] Speaker 00: And it says the same thing. [00:16:42] Speaker 00: It's not a different finding. [00:16:44] Speaker 00: But I will agree, I think, with what Mr. Perry suggested, which is the aeronautical pay is kind of a downstream effect. [00:16:51] Speaker 00: You get aeronautical pay if you are in a position that requires you to fly. [00:16:56] Speaker 00: It's not what determines whether you're in a position that requires you to fly. [00:16:59] Speaker 00: But the position, whether it requires flight, is the classification standard. [00:17:03] Speaker 00: His only argument as to why the generalist pilot requires flight is because it requires you to maintain an aeronautical rating. [00:17:10] Speaker 00: But the aeronautical ratings in the pages he didn't include say that if you're in not flying status, if you're in a position that does not require flight, the physical condition, the physical fitness evaluation process is waived entirely. [00:17:25] Speaker 00: It just doesn't happen. [00:17:26] Speaker 00: You are deemed, I think it even uses in the regulation, you are deemed fit in a DNIF position, regardless of having to undergo any sort of ongoing physical evaluation process. [00:17:37] Speaker 00: And it makes total sense. [00:17:39] Speaker 00: When you read 3.5 in the generalist pilot description, why would the Air Force create a generalist pilot role? [00:17:47] Speaker 04: What you're saying may be correct, but for this elderly judge, I find it difficult to absorb all of this when it's being written here in oral argument. [00:17:57] Speaker 00: And I agree, Your Honor. [00:17:58] Speaker 00: I think if we had understood Major Henriksen was relying exclusively on the aeronautical rating language under 11402, we would have put that in the appendix. [00:18:08] Speaker 04: What do you mean? [00:18:08] Speaker 04: If you would have understood his blue brief to make that argument? [00:18:13] Speaker 00: Yes, Your Honor. [00:18:14] Speaker 00: He never said in any paper at any stage of proceedings that it was... In his brief to us? [00:18:19] Speaker 00: Correct. [00:18:20] Speaker 00: In the opening brief, he did not cite 11402. [00:18:23] Speaker 00: And he did not say that was relevant. [00:18:25] Speaker 04: Did he have to cite 11402? [00:18:25] Speaker 00: Yes, Your Honor, because that's what describes the requirements for the aeronautical ratings, right? [00:18:29] Speaker 00: He is making an assumption, and I want to be clear about this. [00:18:32] Speaker 00: Major Henriksen, his argument in the blue brief, makes the assumption that when the generalist pilot description says you have to maintain an aeronautical rating, that the only way to keep an aeronautical rating is to be qualified for flight. [00:18:47] Speaker 00: And that's not what aeronautical ratings themselves say. [00:18:51] Speaker 00: But he did not cite the aeronautical ratings themselves to be able to support that point. [00:18:55] Speaker 04: Which is 11402. [00:18:56] Speaker 00: 11402. [00:18:57] Speaker 00: I'm more than happy to submit a supplemental brief and include that as an attachment to make this clear, because I recognize it is a gap in the record. [00:19:04] Speaker 00: And I apologize to the extent that I may have been able to find this sooner. [00:19:09] Speaker 00: But I'm more than happy to do that, Your Honor. [00:19:14] Speaker 00: So I think that is the crucial point. [00:19:16] Speaker 00: And if there's any other questions, I'm not going to answer them. [00:19:18] Speaker 00: But otherwise, I will submit that brief and identify that issue, Your Honor. [00:19:23] Speaker 04: Thank you. [00:19:23] Speaker 00: Thank you. [00:19:34] Speaker 01: The regulatory paradigm for unfitness, different from flight duties or any type of other duties, goes from DOD instruction 1332.18, which flows from 10 U.S. [00:19:47] Speaker 01: Code 1201 and the following provisions discussing unfitness and the retirement of members on active duty or reserve component. [00:19:57] Speaker 01: So the discussion about [00:20:01] Speaker 01: Aeronautical ratings and all that only relates to your ability to perform the required duties for your job. [00:20:08] Speaker 01: In the medical evaluation board, they sent, and that's at appendix 56, you'll see the reference to the conditions, including sinusitis, to the medical standards directory. [00:20:22] Speaker 01: The medical standards directory are a listing of conditions that once you have, you fail retention standards and have to go to the board. [00:20:31] Speaker 01: physical evaluation board. [00:20:33] Speaker 01: So you have a gatekeeping function, do you have a condition, and then at the MEB level, and then you move over to the physical evaluation board where they determine whether that condition keeps you from doing your job. [00:20:44] Speaker 01: So one is nothing to do with your position, and the other has to do very much with your position and the requirements of your rank as well, so your job and your rank. [00:20:55] Speaker 01: So [00:20:57] Speaker 01: The MEB found that his sinusitis failed the retention standards. [00:21:01] Speaker 01: There's higher, in that same document, the medical standards directory, there's higher qualifications for flight duties. [00:21:08] Speaker 01: But he didn't fail. [00:21:09] Speaker 01: He not only failed the higher one, but the general standard that every airman, whether it's an Airman Basic, a security forces member, or any position in the Air Force worldwide, he failed that standard, which made his sinusitis required board review. [00:21:28] Speaker 01: I say all of that so that the focus isn't just on some classification of or whether it's briefed or not. [00:21:35] Speaker 01: The overarching picture is whether or not his duties required, whether his sinusitis interfered with his duties. [00:21:43] Speaker 01: The Air Force Board of Procurement and Military Records said sinusitis keeps him from flying. [00:21:47] Speaker 01: That's the issue before the court is whether or not a pilot needs to fly. [00:21:52] Speaker 01: Subject to any other questions the court may have? [00:21:56] Speaker 04: Thanks to both counsels. [00:21:57] Speaker 04: Case is submitted. [00:21:59] Speaker 04: And that completes our business for the morning.