AV2 (a.k.a. United States v. Murray)

Former Army officer AV2 was allegedly sexually assaulted by Master Sergeant Clinton Murray and is a witness in Murray's upcoming military court trial. The military judge overseeing Murray's case ruled that certain communications between AV2 and a Department of Veterans Affairs psychotherapist were not protected from disclosure under the Military Rules of Evidence. AV2 sought relief in the two military appellate courts, but both affirmed the military judge's ruling.
AV2 now asks the Court to "revise and correct" what she believes all three military courts got wrong. The Defendants moved to dismiss the case, and the Court, after reviewing the parties' briefing and holding oral argument, grants the Motion. Some of AV2's claims are barred by sovereign and judicial immunities, while the Court lacks subject matter and equitable jurisdiction to review the rest. With isolated exceptions not applicable here, Article III courts do not have the authority to review military judges' rulings.

AV2-1 (styled by ACCA as United States v. Murray). The alleged victim filed a writ seeking to have the court reverse the trial findings of the judge allowing discovery of various documents related to a "claim" for PTSD benefits with the Veterans Administration. The writ asked for a finding that the military judge erred in not excluding the discovery under Mil. R. Evid. 513. The military judge had reviewed the documents in-camera.

Under the totality of the circumstances, we conclude the petitioner has failed to demonstrate a clear and indisputable right to the writ she seeks. See Hasan v. Gross, 71 M.J. 416, 418 (2012) (citing Cheney v. United States Dist. Court for D.C., 542 U.S. 367, 380-81 (2004)). 

AV2-2 (styled by CAAF as AV2 v. Cook).

• On October 12, 2021, CAAF noticed "a writ-appeal petition for review of the decision of the United States Army Court of Criminal Appeals on application for extraordinary relief in the nature of writ of mandamus[.]"
• On November 8, 2021, CAAF issued a summary denial of a writ-appeal petition from AV2.
  
• On December 9, 2021, CAAF denied a petition for reconsideration of the denial Order and for in camera review. No. 22-0009/AR, 2021 CAAF LEXIS 1655 (C.A.A.F. 2021).
  

AV2-3 or AV2 v. McDonough, No. 22-369, 2022 U.S. Dist. LEXIS 72609 (D.D.C. April 20, 2022).

​Former Army officer AV2 was allegedly sexually assaulted by Master Sergeant Clinton Murray and is a witness in Murray's upcoming military court trial.[1] The military judge overseeing Murray's case ruled that certain communications between AV2 and a Department of Veterans Affairs psychotherapist were not protected from disclosure under the Military Rules of Evidence. AV2 sought relief in the two military appellate courts, but both affirmed the military judge's ruling.
AV2 now asks the Court to "revise and correct" what she believes all three military courts got wrong. The Defendants moved to dismiss the case, and the Court, after reviewing the parties' briefing and holding oral argument, grants the Motion. Some of AV2's claims are barred by sovereign and judicial immunities, while the Court lacks subject matter and equitable jurisdiction to review the rest. With isolated exceptions not applicable here, Article III courts do not have the authority to review military judges' rulings.

As part of her claim she raised the following.

• The military judge and Secretary Austin violated her Fourth Amendment rights by violating Mil. R. Evid. 513.
• The military judge and Secretary Austin failed to provide her due process in violation of the Fifth Amendment when unlawfully ordering AV2 to sign the release authorization form.
• ACCA and Secretary Austin also violated the Fifth Amendment due process clause when the ACCA did not properly analyze AV2's privilege claim under MRE 513.
• A Fifth Amendment due process violation—against the CAAF and Secretary Austin for the CAAF's failure to follow its procedural rules.

The defendants understandably moved to dismiss the complaint arguing sovereign immunity bars the claim. The district court agrees about the sovereign immunity bar, especially because there has been no affirmative waiver of immunity for the types of issues AV2 raised. AV2 had argued that UCMJ art. 6b, 10 U.S.C. 806b gives the district court authority to intervene. She also argued that the First Amendment right to petition is a waiver, as does the Privacy Act.

AV2 does not have a clear or indisputable right to mandamus. See Allied Chemical, 449 U.S. at 35. A claim that an evidentiary rule was interpreted or applied incorrectly is not extraordinary, but routine, and Judge Cook's decision was not ministerial, but involved significant discretion and judgment. See Richardson, 465 F.2d at 849; Citizens Bank, 15 F.4th at 616.

The district court went on to say (citations omitted),

​In addition to sovereign immunity barring Counts II and III against Judge C, judicial immunity also precludes AV2's claims against him. A judge, including a military judge, in his judicial capacity has "absolute immunity from suit and will not be liable for his judicial acts." He can be liable "only when he has acted in the `clear absence of all jurisdiction.'" Judicial immunity bars injunctive relief.

Further (and query would the following apply in a vaccine disobedience court-martial?),

Congress has not given Article III courts subject matter jurisdiction "directly to review court-martial determinations." Councilman, 420 U.S. at 746. As a "general rule," a court-martial's acts, "within the scope of its jurisdiction and duty, cannot be controlled or reviewed in the civil courts, by writ of prohibition or otherwise." Id. (quoting Smith v. Whitney, 116 U.S. 167, 177 (1886)). There is no exception for a "pre-judgment direct attack" on a court-martial decision that goes "beyond recognized grounds" for collaterally attacking a judgment. See id. at 746-49, 749 n.19, 752-53 (explaining those grounds are the absence of jurisdiction or "some other equally fundamental defect" and "mere[]" error" is insufficient).
Even if a federal court has subject matter jurisdiction, it normally lacks "equitable jurisdiction" to intervene, "by injunction or otherwise," in ongoing court-martial proceedings. Id. at 740, 754, 758. Councilman abstention is improper, however, when there are "extraordinary circumstances." See In re Al-Nashiri, 835 F.3d 110, 128-30 (D.C. Cir. 2016). None are present here.

And in conclusion,

Judge C., with the approval of AV2's SVC, crafted a procedure to address the confidential communications in her claim for VA disability benefits. After thoroughly considering her patient-psychotherapist privilege argument, Judge Cook issued a ruling she disagreed with. He then stayed the release of AV2's records while she sought extraordinary relief in the ACCA and the CAAF, both of which agreed with Judge C. Just before the parties were to finally receive her records, she received another stay from this Court. It will not now intervene to do something it cannot and create a successive appellate track in the Article III courts.[7] See also E.V. v. Robinson, 200 F. Supp. 3d 108, 114 (D.D.C. 2016) (suggesting Councilman abstention may be appropriate).

E.V. v. Robinson should be familiar.

Plaintiff E.V. has accused defendant 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.

The Ninth held that (sorry using the headnote here),

In a civilian sexual assault victim's action against a military judge arising out of rulings relating to her mental health records under Mil. R. Evid. 513, Manual Courts-Martial, sovereign immunity barred the civilian's non-constitutional claims for injunctive relief because those claims were considered to be against the government and the government had not waived its immunity; 5 U.S.C.S. § 702 did not abrogate application of the Larson framework where the waiver of sovereign immunity did not apply, and the civilian's constitutional claims were not barred by sovereign immunity because they were against the military as an individual; However, dismissal was warranted because the judge's rulings were within the scope of his properly delegated authority under 10 U.S.C.S. § 826.

E.V. v. Robinson, 906 F.3d 1082, 1086 (9th Cir. 2018) certiorari den. 140 S.Ct. 501, 205 L. Ed. 2d 316 (2019).

Cheers, Phil Cave