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E.V. v. Robinson

United States District Court, District of Columbia

August 2, 2016

E.V., Plaintiff,


          JOHN D. BATES United States District Judge.

         Plaintiff E.V. has accused defendant David A. Martinez of sexually assaulting her. Because Martinez is a sergeant in the United States Marine Corps, the charges were referred to trial by court martial. That proceeding is currently ongoing before a military judge, defendant Lieutenant Colonel Eugene H. Robinson, Jr. On January 27, 2016, Judge Robinson ordered that E.V. disclose certain mental health records to Martinez over E.V.’s objection that the records are protected by a patient-psychotherapist privilege. E.V. has come to this Court seeking relief from Judge Robinson’s order. Because this Court is not the proper venue for E.V.’s complaint, the case will be transferred to the U.S. District Court for the Eastern District of California.


         In August 2013, plaintiff E.V. accompanied her husband, a staff sergeant in the United States Air Force, to Kadena Air Force Base in Okinawa, Japan, where he was stationed. Compl. [ECF No. 4] ¶ 23. She alleges that on January 1, 2015, she was sexually assaulted by Sergeant Martinez. Id. ¶ 26. The detailed allegations need not be recounted here. What matters is what happened in the subsequent weeks and months as E.V. and her husband pursued a humanitarian transfer off the base and E.V. sought, without avail, to keep her mental health records private in the court-martial proceeding against Martinez.

         Beginning days after the assault, E.V. sought psychotherapy at the Kadena Health Clinic. Id. ¶ 27. Her treatment there continued until March 26, 2015. Id. Meanwhile, on February 12, 2015, E.V.’s husband requested a compassionate reassignment to Travis Air Force Base in California so that E.V. could be near family and separated from Martinez and his friends. Id. ¶ 28. On February 17, 2015, E.V.’s husband’s commanding officer recommended approval of the transfer, id. ¶ 29, but Air Force regulations required that such request first be supported by an appropriate medical authority’s conclusion that remaining in the area would be detrimental to E.V.’s welfare, Ex. D to Pl.’s Mot. TRO [ECF No. 5-6] ¶ 3kk.

         On February 20, 2015, E.V. was admitted to the U.S. Naval Hospital Okinawa for suicidal ideations. Compl. ¶ 30. She was discharged three days later and provided with a patient discharge summary. Id. ¶¶ 31-32. E.V.’s husband used this summary to substantiate his request for a compassionate reassignment, and the reassignment was approved on March 11, 2015. Id. ¶¶ 32, 34. Upon returning to the United States, E.V. continued counseling in Sacramento, California. Id. ¶ 35. The Court details E.V.’s medical history here because it has become central to the ongoing court-martial proceeding against Martinez, where Judge Robinson has authorized the limited disclosure of E.V.’s communications with her psychotherapists. That disclosure order is at the crux of this case.


         The military courts are governed by a set of rules of evidence including Military Rule of Evidence 513, which codifies a psychotherapist-patient privilege. Until 2015, this rule allowed a military judge to conduct an in camera review of communications with psychotherapists “‘if such an examination is necessary to rule on the motion [to compel production].’” D.B. v. Lippert, 2016 CCA Lexis 63, at *14 (A. Ct. Crim. App. Feb. 1, 2016) (quoting Mil. R. Evid. 513 (Manual for Courts-Martial, United States (2012 ed.))). Under that “somewhat nebulous rule, ” id., review of the victim’s mental health records became “ubiquitous” in sexual assault cases, Maj. Cormac M. Smith, Applying the New Military Rule of Evidence 513: How Adopting Wisconsin’s Interpretation of the Psychotherapist Privilege Protects Victims and Improves Military Justice, Army Lawyer, Nov. 2015, at 6, 9.

         In 2014, Congress strengthened Rule 513 by eliminating “a frequently used ‘constitutionally required’ exception to the privilege.” Smith, Applying the New Military Rule of Evidence 513, at 6; see National Defense Authorization Act for Fiscal Year 2015 (NDAA 2015), Pub. L. No. 113-291, § 537, 128 Stat. 3292, 3369 (2014). The legislation also required a party seeking production of privileged records to make a factual showing and authorized in camera review only under certain conditions. NDAA 2015, § 537, 128 Stat. at 3369. The President subsequently signed an executive order implementing these requirements. Exec. Order No. 13, 696, 80 Fed. Reg. 35, 783 (June 17, 2015). Now, a military judge may only examine patient-psychotherapist communications in camera or disclose them if he finds by a preponderance of the evidence that the requested information meets one Rule 513’s enumerated exceptions. NDAA 2015, § 537, 128 Stat. at 3369. There is no “constitutionally required” exception in the current Rule 513.

         But when Judge Robinson ordered the government to turn over all of E.V.’s mental health records for in camera review on January 13, 2016, his order did not refer to a Rule 513 exception. Ex. 1 to Pl.’s Compl. [ECF No. 4-1] at 7-8. Nor did his subsequent order authorizing disclosure of select portions of the records. Ex. F to Pl.’s Mot. TRO [ECF No. 5-8]. It was only after “it became apparent to [Judge Robinson] that [his] ruling needed to be clear on the analysis of how [he] reached the decision to . . . release” that Judge Robinson provided an explanation rooted in Rule 513. Ex. G to Pl.’s Mot. TRO [ECF No. 5-9]. In a supplemental ruling on February 19, 2016, Judge Robinson found sua sponte that the disclosure of E.V.’s records was justified under Rule 513 exception (d)(5), which allows for disclosure where “the communication clearly contemplated the future commission of a fraud or crime or if the services of the psychotherapist are sought or obtained to enable or aid anyone to commit or plan to commit what the patient knew or reasonably should have known to be a crime or fraud.” Mil. R. Evid. 513, as amended by Exec. Order 13, 696; see Ex. H to Pl.’s Mot. TRO [ECF No. 5-10] at 3-4. According to Judge Robinson, the timing of E.V.’s inpatient mental health treatment “casts doubts on the validity of any suicidal ideations” and suggests that she made them up in order to receive a humanitarian transfer. Ex. H at 3-4. Based on that (questionable) line of reasoning, Judge Robinson found the fraud exception applied: E.V. had sought the services of psychotherapists in order to enable her to commit fraud, i.e., obtaining an otherwise unmerited transfer from Okinawa. Judge Robinson also cited the repealed “constitutional exception, ” finding without more explanation that disclosure was constitutionally required “as potentially exculpatory material favorable to the defense.” Id. at 4.

         In accordance with 10 U.S.C. § 806b(e), E.V. petitioned the U.S. Navy-Marine Corps Court of Criminal Appeals (“CCA”) for a writ of mandamus to correct Judge Robinson’s alleged abuse of discretion in ordering the release of her mental health records. In a one-paragraph order the CCA denied E.V.’s petition the same day that it was docketed. The court found that E.V.’s “right to an issuance of a writ [was] not ‘clear and indisputable.’” Ex. 1 to Compl. at 20. From there, E.V. sought relief from the U.S. Court of Appeals for the Armed Forces (“CAAF”). On June 22, 2016, the CAAF dismissed E.V.’s petition for lack of jurisdiction. Id. at 23-27.

         Feeling that military judges are regularly disregarding victims’ rights and the requirements of Rule 513, and that federal court was the only place where she had a fighting chance at relief, E.V. filed a complaint in this Court on July 8, 2016. She alleges that Judge Robinson’s discovery rulings violate Military Rule of Evidence 513, Article 6b of the Uniform Code of Military Justice, 10 U.S.C. § 806b(a)(8), and the Constitution. To prevent the imminent disclosure of her communications, E.V. filed a motion for a temporary restraining order and preliminary injunction. After agreeing to maintain the status quo pending resolution of E.V.’s motions, Judge Robinson, who is represented by the U.S. Attorney’s Office for the District of Columbia, filed his opposition and a motion to dismiss for lack of jurisdiction, improper venue, and failure to state a claim. The Court held a hearing on July 20, 2016.[1]


         Under Rule 12(b)(3) and 28 U.S.C. § 1406(a), a case may be dismissed “when venue is ‘wrong’ or ‘improper’ in the forum in which it was brought.” Atl. Marine Const. Co. v. U.S. Dist. Ct. for the W. Dist. of Tex., 134 S.Ct. 568, 577 (2013). When venue is challenged, the court must determine whether the case satisfies the requirements of federal venue laws. Id. “If it does, venue is proper; if it does not, venue is improper, and the case must be dismissed, ” id., or, “if it be in the interest of justice, ” transferred to any district in which the case could have been brought, 28 U.S.C. § 1406(a). “The decision whether a transfer ...

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