The 9th Circuit affirms the dismissal of an alleged victim’s collateral challenge of a discovery order
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.).