DeRito v. United States, 20-1134

Adam DeRito was involuntarily disenrolled from the U.S. Air Force Academy for multiple misconducts, including emailing nude photos to a 13-year-old and other disciplinary infractions.
After separation he enlisted in the Colorado Army National Guard and was denied promotion to warrant officer/flight school, which he attributes to adverse mental-health entries in his military personnel file.
DeRito alleges an unlicensed psychologist, Major Kristin Henley Price, falsified/added unsubstantiated mental-health diagnoses to his records after his Academy disenrollment.
He sued the Air Force Academy and Major Price for procedural and substantive due process violations (for altering medical records without notice or evidentiary basis) and for negligence based on the alleged falsified records.
The district court dismissed: (1) due process claims as nonjusticiable military personnel matters, and (2) the negligence claim as effectively a defamation claim barred by the FTCA’s libel/slander exception. DeRito appealed.
The Tenth Circuit affirmed, holding the due process claims nonjusticiable and the negligence theory barred by the FTCA exception for claims arising out of libel.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Justiciability of due process claims challenging medical records	DeRito: records were altered post‑Academy without notice or process; seeks correction so promotion not denied	Govt: personnel/military decisions are nonjusticiable; administrative military remedies exist; judicial review would improperly interfere	Court: nonjusticiable — balancing test favors deference to military; pursue 10 U.S.C. §1552 remedies
Availability of a Bivens remedy for military‑service related constitutional injuries	DeRito: Bivens allows suit against federal officials for constitutional violations	Govt: Bivens does not extend to injuries arising out of military service	Court: Bivens unavailable for claims incident to military service
Whether negligence claim is barred by FTCA §2680(h) (libel/slander exception)	DeRito: claim sounds in negligence; diagnoses are medical opinions, not defamatory statements; no publication/special damages pled	Govt: substance of allegations is false, published diagnoses that caused denial of promotion — thus defamation excluded from FTCA waiver	Court: allegations satisfy elements of defamation under Colorado law; FTCA libel exception bars the claim
Consideration of new arguments/facts raised on appeal	DeRito: raised additional issues/facts in reply brief	Govt: appellate court should not consider matters not raised below or new record facts	Court: declined to consider new arguments/facts introduced on appeal

Lindenau v. Alexander, 663 F.2d 68 (10th Cir. 1981) (articulates test and deference for military personnel decisions and justiciability analysis)
Gilligan v. Morgan, 413 U.S. 1 (1973) (courts should avoid second‑guessing professional military judgments)
Costner v. Okla. Army Nat’l Guard, 833 F.2d 905 (10th Cir. 1987) (balancing test favors against interference in routine military personnel decisions)
Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) (recognizes damages remedy against federal officials but limited in scope)
Hanson v. Wyatt, 552 F.3d 1148 (10th Cir. 2008) (Bivens does not extend to injuries incident to military service)
United States v. Shearer, 473 U.S. 52 (1985) (FTCA excludes any claim arising out of enumerated torts; negligent supervision claims treated like respondeat superior)
Garling v. EPA, 849 F.3d 1289 (10th Cir. 2017) (explains FTCA is a limited waiver of sovereign immunity and identifies exceptions)
Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 757 F.3d 1125 (10th Cir. 2014) (sets elements for defamation under Colorado law in FTCA context)
Robert C. Ozer, P.C. v. Borquez, 940 P.2d 371 (Colo. 1997) (publication for defamation includes any communication to a third person)