United States District Court, District of Columbia
D. BATES United States District Judge.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 ...