Last year, in EV v. United States & Martinez, 75 M.J. 331 (C.A.A.F. Jun. 21, 2016) (CAAFlog case page), a unanimous CAAF found no jurisdiction under Article 6b to entertain a writ-appeal by an alleged victim who sought to reverse a military judge’s order for disclosure of portions of her mental health records. The NMCCA had denied the writ petition summarily (order available here).

I just discovered that the alleged victim then sought collateral review in U.S. District Court, asking for a writ of mandamus to reverse the military judge’s order. On October 5, 2016, in an order available here, Judge John A. Mendez dismissed the case on the basis that “the United States has not waived its sovereign immunity.” Order at 3.

EV appealed that order to the Ninth Circuit, where the case is still pending (docket number 16-16975).

Judge Mendez’s order includes this analysis:

This Court must dismiss this case because the United States has not waived its sovereign immunity. Plaintiff E.V. sued Defendant Lt. Robinson in his official capacity, which constitutes a suit against the United States. See Gilbert, 756 F.2d at 1458 (“a suit against [federal] employees in their official capacity is essentially a suit against the United States”). See also Compl. at 1. Plaintiff E.V. invoked this Court’s §§ 1331 and 1361 jurisdiction, but neither statute waives sovereign immunity. See Pit River Home and Agric. Coop. Ass’n, 30 F.3d at 1097-98 n.5. See also Compl. ¶ 7. And, contrary to Plaintiff E.V.’s argument that § 1361 petitions raise no sovereign immunity issues, the Ninth Circuit emphasizes that sovereign immunity is “an additional impediment” to “allegation[s] of mandamus jurisdiction.” Smith, 534 F.2d at 1352 n.9. See also Surreply, ECF No. 35, at 2. Plaintiff E.V.’s Hail-Mary attempt to invoke § 806b as a statutory waiver also fails: that law grants mandamus jurisdiction only to “the Court of Criminal Appeals.” See 10 U.S.C.A. § 806b(e)(1) (West 2015) (“If the victim of an offense under this chapter believes that a … court-martial ruling violates the rights of the victim afforded by [MRE 513], the victim may petition the Court of Criminal Appeals for a writ of mandamus to require the…court-martial to comply with the…rule.”). Plaintiff also cites no case law supporting her proposition that § 806b waives sovereign immunity.

Order at 3-4 (emphasis added).

The portion discussing the limited language of Article 6b echoes CAAF’s holding that:

the statute is quite straightforward. It is a clear and unambiguous grant of limited jurisdiction to the Courts of Criminal Appeals to consider petitions by alleged victims for mandamus as set out therein. There is no mention whatsoever of this Court. Congress having legislated in this area and bestowed certain third-party rights on alleged victims, we must be guided by the choices Congress has made. Congress certainly could have provided for further judicial review in this novel situation. It did not.

75 M.J. at 334.

For those who are curious, here’s EV’s initial memorandum in support of the motion (without exhibits).

4 Responses to “Sovereign immunity prevents collateral review of a discovery order in a court-martial”

  1. Tom Booker says:

    I’ll leave it to others to discuss the merits.  Pity that the District Court judge’s staff demoted LtCol Robinson 3 pay grades (maybe 4).
    Respectfully, LTB

  2. Bill Cassara says:

    Just another example of the great divide between civilians and the military. The fact that nobody in the court caught that is distressing.

  3. Tami a/k/a Princess Leia says:

    I love the Hail Mary reference.

  4. Dew_Process says:

    Are the government’s pleadings available?  Wondering if they asserted Parker v. Levy deference, comity and all the other “usual suspects?”