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National Crime Victim Law Institute

E.V. v. Robinson, 906 F.3d 1082 (9th Cir. 2018)

November 29, 2018

Plaintiff E.V. was sexually assaulted by a service member, and Judge Robinson presided over the court martial of defendant in the case.  In the course of the proceedings, the judge conducted an in camera review of the victim’s mental health records and ordered that portions be released to the parties pursuant to a qualified protective order.  The victim sought review of that ruling in the military courts, but was unsuccessful.  She then filed this action in federal court, seeking to enjoin the release of the records, and arguing that the review and release of her records violated evidence laws and her right to be treated with fairness and with respect for her dignity and privacy, as well as her rights under the Constitution.  The district court dismissed the complaint on sovereign immunity grounds and the judge released the mental health records subject to the terms of the protective order.  The victim sought an order requiring the judge to destroy all copies of the records in his possession and to instruct the parties to do so as well.  The appellate court first explained that suits against the government are barred for lack of subject matter jurisdiction unless the government expressly and unequivocally waives its sovereign immunity.  Thus, the court initially reviewed whether the victim’s claims were against the government and if so whether the government waived its sovereign immunity over those claims.  Under Supreme Court precedent (Larson), a suit against a federal official for specific relief is not considered to be against the government where the plaintiff alleges: (1) action by officers beyond their statutory powers (acting ultra vires); or (2) even though within the scope of their authority, the powers themselves or in the manner in which they are exercised are constitutionally void.  Judge Robinson argued that section 702 of the Administrative Procedure Act abrogated the Larson exceptions, and replaced them with an express waiver provision.  However, the court concluded that section 702 superseded the Larson exceptions only for suits in which the amendment’s waiver provision applies, but did not abrogate the exceptions where the waiver does not apply.  Because the waiver does not apply to this case (because the judge is not an “agency” but rather was acting in his official capacity as a military judge) the Larson exceptions may be invoked.  Further, the court concluded that suits for specific relief that are pleaded against federal officials in their federal capacities are not per se barred by sovereign immunity.  Turning to the Larson factors, the court concluded that Larson dictates that the victim’s non-constitutional claims alleged errors in the exercise of delegated power (erroneously applying evidentiary rules) rather than a lack of delegated power: “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.”  Accordingly, these non-constitutional claims are “against the government” and are barred unless such immunity has been waived.  The victim argued that Congress waived the government’s sovereign immunity in federal court through UCMJ Article 6b(e), which provides that if a victim believes that a court-martial ruling violates her rights relating under the psychotherapist-patient privilege, the victim may petition the Court of Criminal Appeals for a writ of mandamus to require the court martial to comply with the rule.  However, the court concluded that Article 6b(e) provides only a limited waiver of sovereign immunity to allow victims to petition for mandamus relief in the military Court of Criminal Appeals, not a general waiver that applies in Article III courts.  Thus, the court concluded that sovereign immunity barred the victim’s non-constitutional claims because they were against the government, and the government had not waived its immunity.  The court then turned to the victim’s constitutional claims.  The court stated that unlike the non-constitutional claims, these claims were not “against the government” because she was arguing that the judge was acting ultra vires.  However, the court nonetheless affirmed the dismissal of these claims on other grounds.  First, the victim argued that the judge violated her Fourth Amendment rights to be free from search and seizure   Assuming arguendo the victim had a cognizable Fourth Amendment interest in her mental health records, the court stated that her allegations were conclusory and insufficient to state a claim.  The victim also argued that the judge “unlawfully usurped” Article III judicial power by declaring that disclosure of her records was “constitutionally required” even though that exception had been repealed.  The court found that the victim was unable to establish the redressability element of standing through this claim alone.  Even if the judge’s reliance on the “constitutionally required” exception was erroneous, he independently relied on an evidentiary rule to release the records, and allegations challenging his use of evidentiary rules are barred by sovereign immunity.  Accordingly, the lower court’s decision was affirmed.