Two years ago, 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 military judge – Marine Corps Lieutenant Colonel Robinson – ordered release of the records on the basis that disclosure was required to protect the constitutional rights of the accused (seemingly reviving the constitutionally-required exception that was deleted from the Manual for Courts-Martial in 2015) and on the basis that the crime/fraud exception applies (as EV’s mental health treatment was – perhaps fraudulently – used to justify an expedited transfer of her active-duty husband).

Soon after CAAF dismissed the petition, EV (who is an alleged victim of sexual assault) filed suit in U.S. District Court seeking to prevent the release of her mental health records. The suit was dismissed on the basis that the United States has not waived its sovereign immunity from such actions. I discussed the dismissal order in this post.

EV appealed that dismissal to the 9th Circuit. The court heard oral argument in June (link to audio) (link to video). Last month it affirmed the dismissal, in E.V. v. Robinson, __ F.3d __, No. 16-16975, 2018 U.S. App. LEXIS 29166 (9th Cir. Oct. 17, 2018) (link to slip op.).

EV made five claims, three based on rules or statutes and two based on the Constitution:

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.

Slip op. at 9-10 (paragraphing added).

The court applied sovereign immunity to EV’s non-constitutional claims. It concluded:

Although these claims may constitute “[s]erious challenges to the propriety” of Judge Robinson’s evidentiary rulings, Robinson, 200 F. Supp. 3d at 114, we conclude that Judge Robinson’s rulings were within the scope of his properly delegated authority under UCMJ Article 26, 10 U.S.C. § 826.

Judge Robinson’s evidentiary rulings, no less than the challenged evidentiary rulings of district judges, were not “beyond his authority.” Larson, 337 U.S. at 702. For purposes of sovereign immunity, Judge Robinson possesses the “discretionary authority to make incorrect as well as correct decisions concerning” the discovery of evidence in a court-martial. Udall, 417 F.2d at 1316; see also Larson, 337 U.S. at 695 (rejecting the argument that “an officer given the power to make decisions is only given the power to make correct decisions”). Just as “the jurisdiction of a court to decide a case does not disappear if its decision on the merits is wrong,” Larson, 337 U.S. at 695, a military judge’s delegated authority does not disappear if his evidentiary decision on the merits is wrong. In sum, E.V. alleges “simple mistake[s] of fact or law,” Yakima Tribal Court, 806 F.2d at 859 (quoting Aminoil, 674 F.2d at 1234), rather than actions in “conflict with the terms of” Judge Robinson’s delegated authority to resolve evidentiary issues when presiding over a court-martial, Larson, 337 U.S. at 695; Yakima Tribal Court, 806 F.2d at 859 (quoting Aminoil, 674 F.2d at 1234).

Slip op. at 27-28. The court also rejected EV’s argument that Article 6b(e) (that gives an alleged victim standing to seek a writ of mandamus from the military appellate courts) was a wholesale waiver of sovereign immunity in this context, concluding that “Article 6b(e) provides only a limited waiver of sovereign immunity  . . not a general waiver that applies in Article III courts.” Slip op. at 28.

The court found that the Constitutional claims were against Robinson in his personal capacity (because they alleged conduct that exceeded his official authority), but that they nevertheless fail. For the Fourth Amendment claim the court concluded:

Assuming arguendo that E.V. has a cognizable Fourth Amendment interest in her mental health records, these conclusory allegations are insufficient to state a claim.

Slip op. at 30. For the usurpation claim the court concluded:

Even if Judge Robinson’s reliance on the “constitutionally required” exception was erroneous, he independently relied on the “crime-fraud” exception in MRE 513(d)(5) to order the release of E.V.’s mental health records. And, as we have explained, E.V.’s allegations challenging Judge Robinson’s application of the crime-fraud exception are barred by sovereign immunity. Because Judge Robinson’s “crime-fraud” ruling provides an independent basis for his decision to release E.V.’s mental health records and sovereign immunity bars any challenge to that ruling, there is no basis on which the district court could grant her any relief on this claim. See Get Outdoors II, LLC v. City of San Diego, 506 F.3d 886, 895 (9th Cir. 2007). Accordingly, E.V. cannot establish standing to assert her second constitutional claim alone, and thus we affirm the dismissal of this claim for lack of subject matter jurisdiction.

Slip op. at 31.

8 Responses to “The 9th Circuit affirms the dismissal of an alleged victim’s collateral challenge of a discovery order”

  1. Brian Bouffard says:

    The Executive purporting to “delete” from a statute, and thereby eradicate, something that is Constitutionally-required is ludicrous.  If it’s Constitutionally-required, it doesn’t matter if it’s written in the statute or not, to begin with.  The Government (that is, the prosecution) is piss-drunk on its own power, whether legitimate or unconstitutionally arrogated.

  2. Zachary D Spilman says:

    Two questions for you, Brian Bouffard.

    First, what’s wrong with the NMCCA’s analysis in J.M. v. Payton-O’Brien and Ravenscraft, 76 M.J. 782 (N-M. Ct. Crim. App. Jun 28, 2017) (discussed here)?

    Second, what other privileges available to a witness must have exceptions for the constitutional rights of the accused? The clergy privilege? The attorney-client privilege?

  3. Brian Bouffard says:

    Hey, Zach!
    I don’t think the J.M. decision is a bad analysis, because it makes clear that where the rubber meets the road, a military judge must apply remedial measures that eliminate the Constitutional problem – as in “okay, accused, you don’t get to see her psych records over her objection; but government, you don’t get to prosecute the accused (or use the alleged victim’s testimony at all, or the proceedings are abated, etc.).”
    As to your second question, not sure where I come out on that specifically.  My overall point is, as a general rule, it violates separation of powers (a quaint concept these days, I realize) for the Executive Branch to “regulate” away Constitutional protections.

  4. Vulture says:

    Regarding J.M. v. Payton-O’Brien and Ravenscraft, take a look at Cpt Obvious’ comments below the write up.  That is where we are isn’t it?  

  5. Zachary D Spilman says:

    It just seems to me, Brian, that as a general rule privileges trump the rights of the accused. A witness gets to invoke a privilege (clergy, attorney-client, psychotherapist, marital, etc.), even if the invocation denies the accused important evidence. There are remedies for the denial of the evidence, but they don’t come at the expense of the privilege.

    Mil. R. Evid. 513 used to have a specific exception for the accused’s constitutional rights, of course, but it doesn’t anymore.

  6. Justin Henderson says:

    I just also humbly note that, intoxicated as the Government may be, it was not the party advancing any of the petitions or appeals in E.V. v. Robinson.

  7. stewie says:

    Zach, I think everyone hear understands that a constitutional right “beating” a privilege means that evidence not coming in, or if the holder of the privilege wants that evidence to come in then they must reveal the information that is constitutionally required.
    We also know that every single privileges has some degree of exceptions (one of which was used here).

  8. Sir Visdis Crediting says:

    If E.V. had styled her writ as “In Re E.V.,” could that have survived the sovereign immunity claim?