U.S. military justice decision of note

The case of E.V. v United States (Lt Col Robinson, Military Judge) and Sgt David Martinez (real party in interest), 75 M.J. 331 (CAAF 2016), continues, even though SGT Martinez was acquitted of all charges in the intervening time.

To put this into perspective, note that it is a POD case, and after CAAF decided that it did not have jurisdiction, Ms. E.V., the alleged victim of a sexual assault under Art. 120, UCMJ, filed suit in federal court arguing that inter alia the MJ erred and abused his discretion in ordering (a) an in camera review of EV's mental health records; and (b) ordering a redacted version disclosed to the court-martial parties pursuant to a Protective Order.

Notably, the MJ had ordered them released under two rationales: (1) The "crime-fraud" exception; and (2) that they were "constitutionally required" to be disclosed. EV then filed suit in federal district court, which dismissed her Complaint under sovereign immunity grounds. EV appealed and on Wednesday, the 17th, the 9th Circuit affirmed the dismissal in a comprehensive opinion, addressing sovereign immunity, the Administrative Procedure Act, that EV's 4th Amendment claims failed to state a valid claim under Rule 12(b)(6), FRCivP, and that the MJ's reliance on the now-erased "constitutionally required" exception, failed "for lack of redressability."

This is obviously an important decision for a number of reasons for military justice practitioners and your close attention to the 9th Circuit's decision is more than warranted, which is available here.