Cushing v. Tetter: Still a Good Tool in the Box
By Alison Carter
This article was published in the Spring 2016 issue of On Watch.
This article explores a goldmine of findings in a 1979 federal district court case where an active duty Navy airman, alleging suicidal tendencies, successfully argued for a preliminary injunction. The injunction prevented the military from returning him to his unit before he had an opportunity to exhaust all administrative options available for challenging the order to return to duty.
Despite its age, it appears that this case has withstood the test of time and contains powerful holdings that are applicable to many fact patterns encountered in G.I. Rights advocacy.
While held in disciplinary barracks following conduct related to his deteriorated mental state, (UA and alleged assault) Navy airman Cushing claimed he suffered from suicidal and homicidal tendencies related to stressors arising from his relationship with his command. A report by two civilian psychiatrists from a major hospital supported his claims. The military informed Cushing that he would return to his unit and full duties in an attack squadron deployed in the Mediterranean in four days based on a military doctor’s mental evaluation.
Airman Cushing sought judicial review claiming, among other things, a Fifth Amendment due process violation; specifically, the short notice did not provide him adequate time to pursue an Article 138 complaint. The court found it could consider Cushing’s claim and granted a preliminary injunction to prevent his return to his unit until he had exhausted all administrative remedies in challenging the military determination that he was fit for duty.
Reviewability by the Court
Courts are generally reluctant to interfere with military command decisions due to the unique nature of the military and its regulations. It is well established that servicemembers may resort to judicial remedies once they have exhausted all administrative remedies with some limitations. There are, however, circumstances when the court is permitted to, and should, intervene when administrative remedies are still available to the servicemember.
Accordingly, this article begins by laying out the principles applied by the Cushing court in deciding whether to review the case at all. The court took the principals set forth in Mindes v. Seaman and updated them for holdings in subsequent cases. The author finds it useful to identify the “Mindes doctrine” as supplemented by the Cushing court, as a four-part sequential test. (Not to be confused with a four-factor balancing test found in Part III.)
The reader should take note that the Mindes doctrine has been replaced in some circuits relating to specific circumstances, such as servicemembers seeking money damages from individual commanders. Research your circuit holdings carefully. The Cushing application of the Mindes doctrine is still informative because it addresses a scenario familiar to G.I. Rights Hotline and MLTF advocates and apparently seldom reaching the courts.
Cushing four-part test for judicial reviewability
Part I asks whether there is an allegation of either a) deprivation of a constitutional right; b) violation of applicable statutes; or c) violation of the military’s own regulations. The Cushing court found that Cushing’s Fifth Amendment right to due process was violated when he was given only a four day notice of return to full duty, allowing inadequate time to file an Article 138 complaint to challenge the determination that he was fit for duty. If Part I is satisfied, the court will continue its analysis.
PART II asks whether a) available intra-service corrective measures have been exhausted; b) if not, would to do so be fruitless; or c) would irreparable harm be suffered by the servicemember while exhausting the administrative remedy due to a lack of interlocutory relief available administratively. Here, the court found that Cushing would likely suffer irreparable harm while pursuing an Article 138 complaint because he would be sent back to the very environment responsible for exacerbating the medical condition that ultimately lead to disciplinary action against him.
Once Parts I and II are satisfied, a four-factor balancing test is performed in Part III to determine if the claim is of “sufficient magnitude” to overcome “the principal of deference,” a presumption established by the SCOTUS in Orloff v. Willoughby that the courts generally should not interfere with military decision-making due to the unique nature of the military.
PART III, in other words, examines the substance of the servicemember’s allegation that has survived Parts I and II in light of policy reasons behind the presumption of non-review of military matters. The court must weigh as many of the four factors as are present in the case, but not in any particular order. This approach, the court notes, was “was cited with approval” by the First Circuit.
Four factors used to weigh the magnitude of the claim.
The first factor weighs the nature and strength of the plaintiff’s challenge to the military determination. Constitutional claims normally are more important than claims based only on statute or regulation. The second factor weighs the potential injury to the plaintiff if the court refuses to review.
The third factor weighs the type and degree of anticipated interference with the military function if the court reviews the case. Finally, the fourth factor weighs the extent to which the exercise of military-specific expertise or discretion is involved.
If the court determines that the magnitude of potential harm to the plaintiff sufficiently outweighs the interests of the military, making judicial review appropriate, it must then determine the scope of review it should apply to the military determination. In this case, the court found the individual interest of possible deprivation of life and/or liberty without due process to be high. Conversely, it found the military interest in returning that individual to his unit in four days to be low, leading to a discussion of the appropriate scope of review.
PART IV uses three factors to determine if the court should broadly or narrowly review the military determination challenged by the servicemember. The first factor the Cushing court considered in determining its scope of review was the weight of the competing interests of the servicemember and the military command. When the servicemember’s interest is strong and the military’s interest is weak, a greater scope of review should be undertaken. The results of the Mindes balancing test in Part III feed directly into this analysis. In this case, the court found that the servicemember’s interest of possible deprivation of life or liberty without due process greatly outweighed the military’s interest in staffing a position with a potentially mentally unfit person when there was no evidence presented that the particular individual was critical to the unit nor was he due to serve in combat.
The second factor explores the extent to which the court has independent expertise in the nature of the military decision being challenged. Here, the court found it was not suited to, but need not, determine fitness for duty, a determination usually reserved to the military. It was, however, perfectly capable of determining whether a medical determination has been made without due process, as the court often does in social security disability claims.
Finally, the court must support its judgment with substantial evidence giving no consideration to unsubstantiated claims put forth by either party. For example, in this case, the court found the civilian psychiatric evaluations to be thorough, taking hours to conduct specific tests, and the reports fully documenting the results of the tests and explanations for the professional conclusion. On the other hand, the military medical report was brief, and while acknowledging the civilian reports, provided no explanation as to why the military doctor disagreed with their findings.
OTHER USEFUL DISCUSSIONS IN THE CASE
In addition to laying out a detailed framework for supporting judicial reviewability as discussed above, this case goes into depth in its analysis of how individual rights under the Fifth, Sixth and Eighth Amendments apply to military circumstances.
The opinion may be very helpful to anyone arguing deprivation of the right to medical care, specifically, insufficiency of a psychiatric examination. In addition to a finding of insufficiency for failure to conduct tests and properly consider and refute findings in civilian psychiatric reports, the court found the military psych evaluation unreliable because it began with a Miranda warning.
The court stated a servicemember has a “Fifth Amendment due process right not only to have a medical and psychological evaluation to determine if he/she is fit for duty, but that evaluation must include a confidential relationship. . ..” It logically follows that if an effective evaluation for fitness for duty requires the servicemember to incriminate him or herself, the evaluation must be performed by a civilian doctor who can maintain confidentiality regarding any incriminating statements.
The court went to great lengths to protect Airman Cushing’s due process rights and thoroughly developed its reasoning in overcoming the presumption against interference with military determinations. It is not practical to touch on every aspect of the opinion in this article, and I recommend you give the opinion a read. A great addition to the MLTF toolbox.
Alison Carter served the G.I. Rights Hotline as a volunteer counselor in Alaska from 2004 to 2009 and board member for most of that time. Inspired by NLG attorneys who collaborated on Hotline cases, Alison gave up her 20-year accounting career for a law degree. She graduated from the University of Arkansas School of Law in May 2015 and was sworn into the Alaska Bar on June 3, 2016. Her low-fee, solo practice will focus on Hotline support and criminal defense work, mainly serving active-duty and veteran military members. She is based in Fairbanks, Alaska but will also support the Hotline with Anchorage cases.
 Cushing v. Tetter, 478 F.Supp.960 (DC Rhode Island, 1979)
 The author Shepardized the case and the underlying circuit court and Supreme Court decisions, finding no negative treatment to the Cushing holdings other than distinguishing for different facts. The author, however, advises readers to perform a thorough check of their own. Last disclaimer, the author deliberately ignores any mention in the opinion about judicial review of courts martial determinations, and focuses only on administrative determinations.
 Id. at 965. Referencing Orloff v. Willoughby, 345 U.S. 83, 73 S.Ct. 534, 97 L.Ed. 842 (1953).
 Id. at 965.
 Id. at 965-967.
 Mindes v. Seaman, 453 F.2d 197, 201-02 (5th Cir. 1971).
 Cushing at 966.
 Id. at 965-966.
 Id. at 967, referencing three cases, one of which was affirmed by the 5th Circuit.
 Id. at 967 referencing Suro v. Padilla, 441 F.Supp 14 (D.P.R. 1976).
 Id. at 966-967.
 Id. at 965.
 Id. at 965, 966.
 Id. at 966.
 Id. at 966 referencing Pauls v. Secretary of the Air Force, 457 F.2d 294 (1st Cir. 1972).
 Id. at 966. Analysis of each factor is found at 967-971.
 Id. at 971
 Id. at 971
 Id. at 972
 Id. at 971
 Id. at 972
 Id. at 972