E. V., Plaintiff-Appellant,
Eugene H. Robinson, Jr., Lieutenant Colonel, U.S. Marine Corps, in his capacity as Military Judge; David A. Martinez, Sergeant, U.S. Marine Corps., as Indispensable Party, Defendants-Appellees.
and Submitted June 14, 2018 San Francisco, California
from the United States District Court No.
2:16-cv-01973-JAM-CKD for the Eastern District of California
John A. Mendez, District Judge, Presiding
Coote (argued), Pennoni Associates Inc., Philadelphia,
Pennsylvania, for Plaintiff-Appellant.
Gregory Thomas Broderick (argued), Assistant United States
Attorney, United States Attorney's Office, Sacramento,
California, for Defendants-Appellees.
Before: Eugene E. Siler, [*] Richard A. Paez, and Sandra S.
Ikuta, Circuit Judges.
panel affirmed the district court's dismissal on
sovereign immunity grounds of an action brought by E.V., a
civilian on a military base in Japan, seeking to enjoin the
release of her mental health records.
filed this action against Judge Robinson in his official
capacity as a military judge who presided over the
court-martial of a service member accused of sexually
assaulting E.V. Judge Robinson conducted an in camera review
of E.V.'s mental health records and ordered that portions
of those records be released to the court-martial parties
pursuant to a qualified protective order.
panel applied the framework set out in Larson v. Domestic
& Foreign Commerce Corp., 337 U.S. 682 (1949), and
held that sovereign immunity barred E.V.'s
non-constitutional claims for injunctive relief because those
claims were considered to be against the government and the
government had not waived its immunity. The panel further
held that, under Larson, E.V.'s constitutional
claims were considered to be against Judge Robinson as an
individual and thus were not barred by sovereign immunity.
The panel concluded, however, that E.V.'s constitutional
claims must be dismissed on other grounds.
the panel held: (1) the 1976 amendment to section 702 of the
Administrative Procedure Act did not abrogate the
Larson framework in suits where section 702's
waiver of sovereign immunity did not apply; (2) under
Larson, suits for specific relief that were pleaded
against federal officials in their official capacities were
not per se barred by sovereign immunity; (3) E.V.'s
non-constitutional claims were barred by sovereign immunity
because they did not allege ultra vires action for
purposes of the Larson framework, and the government
had not waived its sovereign immunity over such claims; (4)
E.V.'s Fourth Amendment allegations were not
"against the government" under Larson and
thus were not barred by sovereign immunity, but such
allegations failed to state a claim under Fed.R.Civ.P.
12(b)(6); and (5) E.V.'s constitutional claim challenging
Judge Robinson's reliance on the "constitutionally
required" evidentiary exception was similarly not barred
by sovereign immunity, but failed for lack of redressability.
decide whether the doctrine of federal sovereign immunity
bars this suit for injunctive relief against Lieutenant
Colonel Eugene H. Robinson, Jr., ("Judge Robinson")
in his official capacity as a military judge. Judge Robinson
presided over the court-martial of a service member accused
of sexually assaulting appellant E.V., a civilian, on a
military base in Japan. In the course of the court-martial
proceedings, Judge Robinson conducted an in camera review of
E.V.'s mental health records and subsequently ordered
that portions of those records be released to the
court-martial parties pursuant to a qualified protective
sought review of that ruling in the military courts, but was
not successful. She then filed this action in federal court.
She alleges violations of the Military Rules of Evidence, the
Uniform Code of Military Justice, and the Constitution, and
initially sought to enjoin the release of her mental health
records. After the district court dismissed the complaint on
sovereign immunity grounds, however, Judge Robinson released
E.V.'s mental health records subject to the terms of the
protective order. In light of this development, E.V. seeks an
order requiring Judge Robinson to destroy all copies of the
records in his possession and to instruct the court-martial
parties to do likewise.
the framework set out in Larson v. Domestic & Foreign
Commerce Corp., 337 U.S. 682 (1949), we conclude that
sovereign immunity bars E.V.'s non-constitutional claims
for injunctive relief because those claims are considered to
be against the government and the government has not waived
its immunity. We further conclude that, under
Larson, E.V.'s constitutional claims are
considered to be against Judge Robinson as an individual and
thus are not barred by sovereign immunity. We can affirm the
district court on any basis supported by the record, however,
and we conclude that E.V.'s constitutional claims must be
dismissed on other grounds. Accordingly, we affirm the
dismissal of the complaint and the denial of E.V.'s
motion for injunctive relief.
case arises out of the court-martial of Marine Corps Sergeant
David Martinez, who was charged with sexually assaulting E.V.
on New Year's Eve 2014. At the time of the alleged
assault, E.V. was residing on Kadena Air Base in Okinawa,
Japan, with her husband, a staff sergeant in the United
States Air Force. Sgt. Martinez was their neighbor on the
February 12, 2015, E.V.'s husband requested a
compassionate reassignment from Kadena Air Base to Travis Air
Force Base in California so that E.V. would be separated from
Sgt. Martinez and closer to her family. E.V.'s
husband's commanding officer recommended approval of the
request on February 17, 2015, but over the next three days,
the reassignment review office repeatedly requested
substantiating documentation for the transfer.
February 20, 2015, E.V. was admitted to the U.S. Naval
Hospital Okinawa ("Naval Hospital") for suicidal
ideations. She was discharged on February 23, 2015. The same
day, E.V.'s husband submitted E.V.'s two-page patient
discharge summary in support of his request for compassionate
reassignment. The reassignment request was finally approved
in March 2015, and E.V. and her husband returned to the
United States. E.V., who had sought psychotherapy counseling
at the Kadena Health Clinic from January to March 2015,
continued to seek psychotherapy counseling upon her return.
2015, Sgt. Martinez was charged with two violations of the
Uniform Code of Military Justice ("UCMJ") relating
to the alleged sexual assault on E.V., and the case was
referred to a general court-martial. Judge Robinson presided
as the military judge.
the court-martial proceedings, Sgt. Martinez requested notice
of whether E.V. sought mental health treatment in connection
with the allegations in the case, as well as the records of
any such treatment. The military prosecutor responded that
E.V. had sought mental health treatment but, along with
E.V.'s special victims counsel, opposed the request to
produce the treatment records. The military prosecutor and
special victims counsel asserted that E.V.'s mental
health records were irrelevant and privileged under Military
Rule of Evidence 513 ("MRE 513"), which codifies
the psychotherapist-patient privilege. Sgt. Martinez moved to
compel production of the mental health records, or, in the
alternative, for Judge Robinson to conduct an in camera
review to determine whether the records were discoverable.
See MRE 513(e)(3) (setting out procedural
requirements for conducting in camera review of
psychotherapist-patient records). Judge Robinson denied the
motion, viewing it as an invitation to "engage in a
fishing expedition" into E.V.'s mental health
course of discovery, however, the military prosecutor
ultimately provided Judge Robinson with two pages of
non-privileged mental health records for in camera review.
The records consisted of the February 2015 patient discharge
summary prepared by the Naval Hospital following E.V.'s
admission for suicidal ideations. Judge Robinson then
released those records to Sgt. Martinez subject to a
protective order, as it was undisputed that any privilege had
been waived as a result of the records' prior disclosure
to support E.V.'s husband's reassignment request. In
light of the information contained in the records, Sgt.
Martinez moved for Judge Robinson to reconsider his prior
denial of the motion to compel production of E.V.'s
mental health records or conduct an in camera review.
January 13, 2016, Judge Robinson granted the motion for
reconsideration as it related to the request for in camera
review of E.V.'s mental health records, stating that he
would determine whether releasing the records "meets a
standard under Mil. R. Evid. 513, with a particular emphasis
on bias/motive to fabricate." Two weeks later, Judge
Robinson granted the motion for reconsideration as it related
to releasing portions of E.V.'s mental health records,
with redactions and subject to a protective order. Judge
Robinson did not provide a reasoned explanation for granting
reconsideration, although he clarified that "the
material covered by this Order is not admitted into evidence,
but is made available to the parties for their possible use
in examining and cross-examining E.V. at trial concerning a
possible bias or motive to fabricate."
on February 19, 2016, Judge Robinson sua sponte issued a
supplemental order setting out his reasoning for granting
reconsideration. In the supplemental order, Judge Robinson
relied on two independent grounds for releasing E.V.'s
mental health records: (1) MRE 513(d)(5) (the
"crime-fraud exception") and (2) the
"constitutionally required" exception. With respect
to the crime-fraud exception, Judge Robinson reasoned that
the "evidence presented cast doubts on the validity of
any suicidal ideations in this case," and "the
timing of the report [of the patient discharge summary] and
treatment show Mrs. E.V.'s tactical use (i.e., fraud) of
the process to obtain a material gain." As for the
"constitutionally required" exception, Judge
Robinson recognized that former MRE 513(d)(8) codifying the
exception had been repealed, but he concluded that the
"same exception appears in Mil. R. Evid.
412(b)(1)(C)." Judge Robinson further concluded that,
because the mental health records were relevant, material,
and had probative value outweighing the danger of unfair
prejudice, they were "constitutionally required."
February 25, 2016, E.V. filed a petition for a writ of
mandamus in the Navy-Marine Corps Court of Criminal Appeals
("NMCCA") under UCMJ Article 6b(e), seeking to
enjoin the release of her mental health records. The NMCCA
denied the petition. Recognizing that Judge Robinson's
reliance on the "constitutionally required" test
under Military Rule of Evidence 412 was erroneous, the NMCCA
nonetheless concluded that there was no "clear and
indisputable" error in the crime-fraud ruling. E.V. next
sought a writ of mandamus in the Court of Appeals for the
Armed Forces ("CAAF") under the All Writs Act, 28
U.S.C. § 1651. The CAAF dismissed the petition for lack
of jurisdiction, reasoning that it could only exercise its
mandamus jurisdiction under the All Writs Act in aid of its
pre-existing statutory jurisdiction, and that Congress
granted only the NMCCA statutory jurisdiction over a
victim's mandamus petition.
2016, E.V. filed this action in the District Court for the
District of Columbia against Judge Robinson in his official
capacity as a military judge, seeking injunctive
relief. The complaint alleges three
non-constitutional claims: (1) that Judge Robinson's in
camera review order violated MRE 513(e)(3); (2) that Judge
Robinson's subsequent order to release E.V.'s mental
health records violated MRE 513(e)(4); and (3) that Judge
Robinson violated E.V.'s right under UCMJ Article 6b to
be treated with fairness and with respect for her dignity and
privacy. The complaint also alleges two constitutional
claims: (1) that Judge Robinson violated E.V.'s Fourth
Amendment right to be secure in her private possessions; and
(2) that Judge Robinson unlawfully usurped Article III power
by implicitly declaring a statute-here, the repeal of the
"constitutionally required" exception in former MRE
513(d)(8)- unconstitutional. E.V. also moved for a ...