UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ ADAM DERITO, Plaintiff - Appellant,

v. UNITED STATES OF AMERICA, Defendant - Appellee. No. 20-1134 (D.C. No. 1:18-CV -01612-PAB-MEH) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before MORITZ , BALDOCK , and EID , Circuit Judges.

________________ _________________ Adam DeRito appeals the dismissal of his due process and negligence claims alleging the United States Air Force Academy and an unlicensed psyc hologist falsified his mental health records. Exercising juri sdiction under 28 U.S.C. § 1291, we affirm.
I DeRito was a cadet at the Air Fo rce Academy until he was involuntarily disenrolled for misconduct. His misconduct included sendi ng abusive emails to other

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### April 15, 2021 Christopher M. Wolpert Clerk of Court2 cadets, having alcohol in his room, engaging in an inappropriate sexual relationship, disobeying an order, and ema iling nude photos of himself to a 13-year old child. His record of disenrollment indicated he ha d been repeatedly re primanded and was “ definitely not recommended ” for other officer training. Aple e. Supp. App. at 32 (capitalization omitted). After DeRito separated from the Air For ce Academy, he enlis ted in the Colorado Army National Guard, where he applied to beco me a warrant officer and to attend flight school. His application was denied, ho wever, because his military personnel file contained what he alleges were false, advers e medical records. Specifically, he alleged that after he was disenrolled from the Air Force Academy, an unlicensed psychologist, Major Kristin Henley Price, made unsubstant iated medical diagnoses about his mental health, which resulted in the denial of his app lication to be promoted to warrant officer. In his amended complaint, DeRito claimed the Air Force Academy violated his procedural due process rights by altering his medical records without notice or an opportunity to challenge the diagnoses. He also claime d the changes to his medical records violated his substantive due process rights because the diagnoses were not based on professional guidelines, scient ific methodologies, or eviden ce-based processes. Last, he claimed the Air Force Academy was neg ligent in ordering or allowing his medical records to be falsified, while Major Pr ice was negligent in falsifying them. 1

1 DeRito also asserted claims under th e Military Pay Act, 37 U.S.C. § 204, and the Declaratory Judgment Act, 28 U.S.C. § 2201, which the district court dismissed. DeRito does not address these clai ms, and we do not consider them. See Conroy v. Vilsack , 707 F.3d 1163, 1170 (10th Cir. 2013).3 The district court dismissed the suit, ru ling that DeRito’s due process claims concerned a nonjusticiable milita ry personnel matter, while hi s negligence claim sounded in libel, which was excepted from the waiver of sovereign immunity under the Federal Tort Claims Act (FTCA), 28 U. S.C. § 2680(h). DeRito now challenges both rulings.
II
A. Due Process “Traditionally the courts have been reluctant to intervene in or review military affairs, particularly those dealing w ith military discretion.” Lindenau v. Alexander , 663 F.2d 68, 70 (10th Cir. 1981). “The complex subtle , and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments, subject always to civil control of the Legislative and Executive Branches.” Gilligan v. Morgan , 413 U.S. 1, 10 (1973). Indeed, “there are thousands of routine personne l decisions regularly made by the services which are variously held nonjusticiable or beyond the competence or jurisdiction of courts to wrestle with.” Murphy v. United States , 993 F.2d 871, 873 (Fed. Cir. 1993) (brackets and internal quotation marks omitte d). Thus, while “actions against military officials for violating their own regulations ar e reviewable or justiciable,” Lindenau , 663 F.2d at 71, personnel matters and other “[d] iscretionary decisions of the military are not subject to review by civilian courts,” Schulke v. United States , 544 F.2d 453, 455 (10th Cir. 1976) (per curiam). To determine whether a claim is justiciable, we employ a two-part test, first asking whether there is a constitutional, statutory, or regul atory violation, a nd second evaluating4 the scope and nature of the intervention in to otherwise military affairs necessary to vindicate the alleged violation: whether the case involves an alleged violation of a constitutional right, applicable statute, or regulation, a nd whether intra-service remedies have been exhausted. If so, the court is th en to weigh the natu re and strength of the challenge to the military determin ation, the potentia l injury to the plaintiff if review is refused, the type and degree of anticipated interference with the military function, and the ex tent to which military discretion or expertise is involved in the challenged decision. Lindenau , 663 F.2d at 71 (internal quotation marks omitted). “[T]he second part of [this] test . . . essentially balances the interest s of the parties, with a preference against interference in the military.” Costner v. Okla. Army Nat’l Guard , 833 F.2d 905, 907 (10th Cir. 1987). 2 DeRito satisfies the first part of the te st by alleging due process violations. The second part of the test, however, clearly counse ls against intervention. DeRito says he wants to correct his records so he can be pr omoted to warrant officer and attend flight school. But this challenge to the alleged ment al health records in his personnel file could and should be pursued th rough military channels, see 10 U.S.C. § 1552(a) (“The Secretary of a military department may corre ct any military record of the Secretary’s department when the Secretary considers it n ecessary to correct an error or remove an injustice.”). Moreover, DeRito ’s potential injury is mere ly economic: he wants to

2 DeRito’s opening brief does not indi cate whether he exhausted, but the government contends DeRito initiated this action befo re a final administrative decision was issued. In repl y, DeRito says he should not be faulted for failing to exhaust because he waited over six months fo r an administrative decision to no avail. We need not resolve this issue because our disposition turns on the proper balancing of the parties’ interests.5 correct his records so he can try to get a promotion. Cf. Costner , 833 F.2d at 908 (weighing potential economic injury from age discrimination, among other factors, in concluding that claim was not reviewable). But “[s]crutinizing numerous personnel decisions by many individuals as they relate to [DeRito]’s claim that he was improperly denied promotion would significantly interfere with military functions.” Id. (brackets and internal quotation marks omitted). I ndeed, second-guessing his alleged diagnoses with the aim of reconsidering his application for promotion “w ould involve th e court in a very sensitive area of military expertise and discretion.” Id. (internal quotation marks omitted). Balancing these consid erations demonstrates that DeRito’s due process claims are nonjusticiable. Attempting to avoid this c onclusion, DeRito suggests his claims do not concern internal military affairs because he was a civili an when Major Price fa lsified his records. Alternatively, he asserts he has a cause of action to challenge discretionary military personnel decisions in Bivens v. Six Unknown Named Agen ts of the Federal Bureau of
Narcotics , 403 U.S. 388 (1971). He is wrong on both accounts. 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. Moreover, Bivens, “which permits suits against federal officials for constitu tional violations, does not encompass suits involving injuries that arise out of or are in the course of activity incident to military service.” Hanson v. Wyatt , 552 F.3d 1148, 1153 (10th Cir. 2008) (internal quotation marks omitted). Again, DeRito’s alleged injury arose out of his service at the Air Force6 Academy. Therefore, Bivens is unavailing. And while he might have pursued a different claim, as recognized in Hanson , challenging the applicati on of a specific military regulation, see id. at 1150, DeRito asserted no such claim and expressly disavows the existence of any such regulation govern ing changes to his medical records, see Aplt. App. at 22, para. 65 (Am. Compl.) (“[The Air Force Academy] does not have any public guidelines or procedures dict ating when, where and why a ca det[’]s medical records may be changed by an individual that has never se en or examined a par ticular cadet(s).”). Under these circumstances, the district court correctly dismissed his claims.
B. Negligence DeRito also challenges the district cour t’s determination that his negligence claim is barred by the FTCA. The court reasoned that DeRito’s claim—predicated on Major Price’s written defamatory di agnoses about his mental hea lth—sounded in libel, which is excepted from the FTCA’s waiv er of sovereign immunity. On appeal, DeRito contends his claim does not satisfy the elements for lib el, and thus the district court should not have dismissed it. We review de novo the district court’s dismissal under the FTCA. See Estate of Trentadue ex rel. Aguilar v. United States , 397 F.3d 840, 858 (10t h Cir. 2005). “The FTCA is a limited waiver of sovereign immu nity, making the Federal Government liable to the same extent as a private party for ce rtain torts of federal employees acting within the scope of their employment.” Garling v. EPA , 849 F.3d 1289, 1294 (10th Cir. 2017) (internal quotation marks om itted). However, there are “e xceptions to the FTCA’s7 waiver of sovereign immunity ,” and “[w]hen an exception applies, sovereign immunity remains, and federal courts lack jurisdiction.” Id. (citing 28 U.S.C. § 2680(a)-(n)). Among the claims excepted from the FTCA’s waiver of sovereign immunity are “claim[s] arising out of . . . libel [or] slander,” 28 U.S. C. § 2680(h), which are the “equivalent” of defamation, Garling , 849 F.3d at 1299 (internal quotation marks omitted). To determine whether this excep tion applies, we do not look solely to DeRito’s characterization of his claim but consider as well the substance of the alleged conduct and whether his allegations delineate a claim “ arising out of ” libel or slander. See United States v. Shearer , 473 U.S. 52, 55 (1985) (“Section 2680(h) does not merely bar claims for assault or battery; in sweep ing language it excludes any claim arising out of assault or battery.”). DeRito alleged the Air Force Academy and Major Price breached a duty of care by falsifying his medical re cords. He alleged Major Pr ice fabricated his records, intending to harm him, and he repeatedly described her conduct as “fraudulent” and “defamatory.” Aplt. App. at 11, para. 9; id. at 12, para. 16; id. at 13, para. 20. He extended these allegations to the Air Fo rce Academy and claimed it, too, was negligent in ordering or allowing Major Price to falsify his records. These allegations satisfy the elements for defamation. We apply Colorado’s defin ition of defamation because “[s]tate substantive law applies to suits brought against th e United States under the FTCA,” Garling , 849 F.3d at 1294 (internal quotation marks omitted); see 28 U.S.C. § 1346(b)(1). Colorado defines defamation as “(1) a defamatory stat ement concerning another;8 (2) published to a third party; (3) with fa ult amounting to at le ast negligence on the part of the publisher; and (4) either actionability of th e statement irrespective of special damages or the existence of sp ecial damages to th e plaintiff caused by publication.” Brokers’ Choice of Am., Inc. v. NBC Universal, Inc. , 757 F.3d 1125, 1136 (10th Cir. 2014) (applying Colorado substantive law). DeRito alleged the diagnoses were fa lse and defamatory, damaging him both personally and financially. He also alle ged Major Price published the diagnoses in his medical records intending to harm hi m, which came to fruition when he was denied a promotion based on the false dia gnoses in his personnel file. He further alleged Major Price was at fault for neglig ently altering his r ecords to include the diagnoses, and he asserted th e diagnoses were actionable b ecause they resulted in the denial of his promotion to warrant officer. Given these allegations, DeRito’s claim is barred by the FTCA’s exception for claims ar ising out of libel. To the extent he alleged the Air Force Academy was liable for ordering or allowing Major Price to alter his medical records, that theory is barred as well. See Shearer , 473 U.S. at 55 (“There is no indication that Congress distinguished be tween ‘negligent supervision’ claims and respondeat superior claims, with only the latter excluded under the [FTCA].”). DeRito resists this conclusion, but his ar guments are self-defeating. He denies that he pleaded the first element of a libel claim, asserting he di d not allege a false, defamatory statement, only diagnoses that are fact-based medical opinions. This argument undermines his entire theory, however, and ignore s his repeated allegations that the diagnoses were false, fraudulent, and not based on any professional9 guidelines or scientific met hodologies. DeRito also denies that he alleged the second element of a libel claim, as serting that Major Price ne ver published the diagnoses. But the government correctly points out that if Major Price did not publish the diagnoses, DeRito cannot establ ish causation. Third, DeRito inexplicably asserts that Major Price is not at fault because she did not publish the diagnoses—she merely included them in his personnel file. Yet he alleged she was at fault for negligently altering the records in his pe rsonnel file, which were pub lished to some unidentified third-party at the Colorado Army Nati onal Guard who relied upon the medical records to deny him a promotion. These alle gations are sufficient to inculpate her for publication, which “include s any communication by the defe ndant to a third person,” Robert C. Ozer, P.C. v. Borquez , 940 P.2d 371, 379 (Colo. 1997). DeRito also asserts he did not plead the fourth elemen t of libel because he did not allege any special damages. The diagnoses would have been actionable per se, however, because the allegedly defamatory meaning would be apparent from the face of the diagnoses. See Han Ye Lee v. Colo. Times, Inc. , 222 P.3d 957, 961 (Colo. App. 2009). Thus, there was no need to plead special damages. See id. DeRito’s negligence claim is barred by the FTCA’s ex ception for claims arising out of libel.
C. DeRito’s Reply Brief For the first time, DeRito, in his reply br ief, raises issues not raised in the district court, plus asserted f acts not before the district court. It is well established in this court that new arguments cannot be made before this court in a reply brief. See White v. Chafin , 862 F.3d 1065, 1067 (10th Cir. 2017); Gold v. Wolpert , 876 F.2d10 1327, 1331 n.6 (7th Cir. 1989). Neither will this court consid er matters of fact not in the record before th e district court. See Rio Grande Silvery Mi nnow v. Bureau of Reclamation , 601 F.3d 1096, 1110 n.11 (10th Cir. 2010). The judgment of the dist rict court is affirmed.

Entered for the Court Per Curiam