Friday, April 10, 2020

Disenrolled Air Force Academy cadet's lawsuit tossed, vows to appeal

Posted By on Fri, Apr 10, 2020 at 1:24 PM

click to enlarge Adam DeRito in 2017 near the Air Force Academy. - CRAIG LEMLEY
  • Craig Lemley
  • Adam DeRito in 2017 near the Air Force Academy.

Former Air Force Academy cadet Adam DeRito lost his case recently when the U.S. District Court in Colorado sided with the Academy on his claims that he was railroaded out of the school. DeRito was disenrolled by Academy leaders after a psychological diagnoses was assigned to him without his knowledge by a clinician he had never seen.

DeRito's case was one of several highlighted in the Indy's 2017 report about how the Academy used psychological diagnoses to push cadets who had reported being sexually assaulted out of the school. DeRito was among those cadets.

Assaulted at a party off campus, DeRito reported the incident and later was labeled with a mental disorder he didn't find out about until he later applied to the Army National Guard.

He filed suit, accusing the Academy of manipulating his medical records without his knowledge to accommodate its desire to shove him out the door just before graduation.

Now, his attorney, Herbert Rubenstein of Brooklyn, New York, tells the Indy the case has national implications, notably in the recent removal of Capt. Brett Crozier from command on the U.S.S. Theodore Roosevelt, as well as the Academy's decision to keep senior cadets on base amid the coronavirus, during which two cadets died by suicide.

He also says his client will appeal to the 10th Circuit Court of Appeals.

Rubenstein says the federal court ruling dismissed every argument raised by DeRito, including that he was kicked out of the Academy based in part on a bogus psychological diagnosis, falsification of his medical records by entering that diagnosis on his record in 2011, a year after he was disenrolled, and the unfair or even illegal garnished his wages for $260,000 the Academy charged him for his education after it disenrolled him in 2010.

"They [judges] said there are no procedures to cover any of this," Rubenstein says, adding that because the court ruled there were no procedures, the Academy can't be held accountable for violating procedures that didn't exist.

"If we lose our case this way, then Captain Crozier, even though he may have been taken off the command of the Theodore Roosevelt for a bogus reason, has no right to go to court," he said. "The 1,000 seniors who are presumably still at the Academy [graduation is set for April 18], can't go to court."

If they tried to file suit, the court would rule, "That's a military decision, and we courts don't have any guidance in that," Rubenstein said. "They basically said the Constitution stops at the door of the Academy, or the flight deck of the Theodore Roosevelt. So if that's the case, we have an unaccountable military, unaccountable to the Constitution, unaccountable to the court system. That's the implication of this decision."

Rubenstein says via email, "If the military does not have an internal rule governing it’s conduct then the courts will not intervene and apply the constitution to internally unregulated behavior. Bottom line is that if a government agency wants to act they should not have any rules in place - thus the court will not be able to review the conduct to ensure it is constitutional both procedurally and substantively. "

click to enlarge COURTESY AIR FORCE ACADEMY
  • Courtesy Air Force Academy
Crozier was relieved of his command of the ship in early April after sending a memo pleading to have onboard personnel who had been infected with COVID-19 removed from the ship and treated.

As for the Academy's seniors, Rubenstein called dormitories a vector for the coronavirus, and asserted that the cadets and their families might want to bring a legal action against the Academy for requiring them to stay, while the lower three classes were sent home in March.

"The military did something against one of their own," Rubenstein says, speaking of the DeRito case. "Adam is no different than Captain Crozier. He's no different than those seniors who are being forced by the Air Force Academy to stay in Colorado Springs."

DeRito is still waiting for the results of his application to the Boards for Correction of Military Records, and now he'll appeal the federal court ruling.

Meantime, DeRito, who was told he wouldn't graduate hours before graduation in 2010 and was disenrolled in June that year, has since earned a bachelor's degree and master's degree, serves with the Army National Guard and works full time as an industrial wastewater specialist.

"His life would be improved if justice were served in this case, but he's weathering through it," Rubenstein says, speaking for his client.

From the ruling:
The Court has determined that plaintiff’s due process claims are not justiciable and, accordingly, these claims cannot be the independent basis of jurisdiction required by the Declaratory Judgment Act.... As a result, plaintiff’s declaratory judgment claim will be dismissed for lack of jurisdiction.

We've asked the Academy for a comment on the lawsuit's dismissal, as well as provide an update on number of cadets and other personnel at the Academy testing positive for COVID-19— one cadet and one employee had tested positive as of late March. We will update if and when we hear back.

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