A panel of 10th Circuit Court of Appeals judges on April 15 upheld a lower court’s decision to dismiss due process and negligence claims against the U.S. Air Force Academy brought by a former cadet who alleged the Academy and a superior officer falsified his mental health records after he had left.
The case, DeRito v. U.S., makes clear the line of when claims are military or civilian matters, particularly if the person bringing the claims against a military body is currently in a military branch.
The opinion arose from an appeal of the dismissal of Adam DeRito’s due process and negligence claims against the academy and an “unlicensed psychologist” who allegedly falsified his mental health records, according to the opinion. DeRito alleged these actions were taken specifically to prevent him from achieving a personal goal of becoming a pilot.
However, several issues involving DeRito arose when he was a cadet at the academy in Colorado Springs. DeRito was involuntarily disenrolled for misconduct, which included sending abusive emails to cadets, storing alcohol in his room, disobeying an order, engaging in “an inappropriate sexual relationship” and emailing nude photos of himself to a 13-year-old child, according to the opinion. His disenrollment record indicated he was repeatedly reprimanded and “not recommended” for other officer training, according to the opinion.
DeRito separated from the Air Force Academy and enlisted in the Colorado Army National Guard where he applied to become a warrant officer to attend flight school. However, his application was rejected because of the information in his military personnel file and his medical records. DeRito alleged the records were false and adverse.
DeRito alleged that after he was disenrolled at the academy, an “unlicensed psychologist,” Major Kristin Price, had made unsubstantiated medical diagnoses about his mental health resulting in a denial of application to be promoted, according to the opinion. DeRito asserted that the academy violated his procedural due process rights by altering his medical records without notice or giving him an opportunity to challenge the diagnosis. He also alleged that the changes in his record weren’t based on professional guidelines, scientific methods or evidence-based processes. Lastly, he claimed the academy had been negligent in ordering or allowing his medical records to become falsified and that Price was negligent in falsifying them.
The lower court dismissed DeRito’s suit, ruling that his claims concerned a nonjusticiable military personnel matter, and his negligence claim which is not actionable under the Federal Torts Claims Act. DeRito appealed.
The 10th Circuit opinion notes that, traditionally, courts have been reluctant to intervene in or review military affairs dealing with military discretion. The subtle, complex and professional decisions as to composition, training, equipping and control of military forces are essentially professional military judgments, subject to civil control of the legislative and executive branches.
To even address whether a claim is justiciable in the court, a two-part test must be introduced, according to the opinion. First, is to ask if there is a constitutional, statutory or regulatory violation, and second, the court evaluates whether the scope and nature of the intervention into otherwise military affairs is necessary to vindicate the alleged violation.
While DeRito satisfied the first prong of the test, under alleged due process violations, the second part of the test “clearly counsels against intervention.” The court wrote that “this challenge to the alleged mental health records in his personnel file could and should be pursued through military channels. … Moreover, DeRito’s potential injury is merely economic: he wants to correct his records so he can try to get a promotion.”
Attempting to get around that conclusion, DeRito suggested his claims didn’t concern internal military affairs because he was a civilian when Price falsified his records and asserts that he has a cause of action to challenge discretionary military personnel decisions.
“He is wrong on both counts,” the opinion states. “The alleged changes to his medical records arose out of his time at the Air Force Academy, and his alleged injury — denial of a promotion to warrant officer — occurred while he was in the Colorado Army National Guard. This is not a civilian matter.”
On the issue of negligence, DeRito had alleged that the Academy and Price breached a duty of care by falsifying his medical records, and that Price specifically fabricated the records to harm him. “These allegations satisfy the elements of defamation,” the opinion states.
Applying the Colorado definition of defamation because state law applies to suits brought against the U.S. under the FTCA, defamation is defined as a defamatory statement concerning another, published to a third party, with fault amounting to at least negligence on the publisher’s part and either actionability of the statement of damages or existence of damages by the publication. “Given these allegations, DeRito’s claim is barred by the FCTA’s exception for claims arising out of libel,” the opinion states. “To the extent he alleged the [Academy] was liable for ordering or allowing Major Price to later his medical records, the theory is barred as well.”