E. V. v. Robinson

          Argued and Submitted June 14, 2018 San Francisco, California

          Appeal 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

          Peter 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.

         SUMMARY^[**]

         Sovereign Immunity

         The 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.

         E.V. 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.

         The 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.

         Specifically, 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.

          OPINION

          PAEZ, CIRCUIT JUDGE.

         We must 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 order.

         E.V. 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.

         Applying 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.

         I.

         A.

         This 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 base.

         On 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.

         On 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.

         B.

         In June 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.

         During 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 records.

         In the 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.

         On 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."

         Subsequently, 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")^[1] 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)."^[2] 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."

         C.

         On 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.^[3]

         D.

         In July 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.^[4] 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 ...