In re AL v. United States ( 2022 )

U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL APPEALS
In re AL ) Misc. Dkt. No. 2022-12
Petitioner )
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) ORDER
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) Special Panel
On 21 October 2022, pursuant to Article 6b, Uniform Code of Military Jus-
tice (UCMJ), 10 U.S.C. § 806b, and Rule 19 of the Joint Rules of Appellate
Procedure for Courts of Criminal Appeals, Petitioner requested this court issue
a stay of proceedings and a writ of mandamus in the pending court-martial of
United States v. Captain Theodore J. Slusher. Petitioner is an alleged victim
of charged offenses in the court-martial. On 24 October 2022, this court granted
a stay of proceedings and ordered counsel for the Government and counsel for
Captain Slusher (the Accused) to submit briefs in response to the petition. On
8 November 2022, the Government and the Defense submitted responsive
briefs with certain attached documents. On 15 November 2022, Petitioner sub-
mitted a reply to the Government’s response brief, and on 21 November 2022
Petitioner submitted a timely reply to the Defense’s response brief.1
Having considered the petition, the responsive briefs, Petitioner’s reply
briefs, and the matters attached thereto, we grant the petition in part and deny
it in part as specified below.
I. BACKGROUND
The petition, responsive briefs, and reply briefs, with their several attach-
ments, establish the following sequence of events.
On 4 May 2022, the convening authority referred for trial one charge and
four specifications of violations of Article 120, UCMJ, 10 U.S.C. § 920; one
charge and one specification of a violation of Article 120c, UCMJ, 10 U.S.C.
§ 920c; one charge and six specifications of violations of Article 128, UCMJ, 10
1 Petitioner’s deadline to file a reply to the Defense’s brief was extended due to an error
in the service of the Defense’s response brief.
In re AL, Misc. Dkt. No. 2022-12
U.S.C. § 928; and one charge and one specification of a violation of Article 134,
UCMJ, 10 U.S.C. § 934.
On 17 May 2022, trial defense counsel sent an initial discovery request to
trial counsel, requesting production of, inter alia, “[a]ny relevant personnel,
medical, and mental health records of any complaining witness . . . to include
records in the possession of the Family Advocacy Program (FAP) . . . .” On 13
June 2022, the Defense sent a second discovery request to the Government.
On 16 June 2022, assistant trial counsel submitted a “Memorandum for
Release of Healthcare Information” to a military treatment facility (MTF) lo-
cated on Fort Bragg, North Carolina, requesting “all of [Petitioner]’s medical
records for the period from 1 November 2017 – 16 May 2020.” The memoran-
dum asserted the “information sought [was] relevant and material to a legiti-
mate law enforcement inquiry” and that examination of the records was “re-
quired as part of an official investigation.”
On 27 June 2022, the MTF records custodian responded to assistant trial
counsel’s request and provided 575 pages of medical records, including 42
pages of FAP records.
On 21 September 2022, trial defense counsel filed a motion to compel pro-
duction of, inter alia, “[a]ll of [Petitioner]’s medical records maintained by [Pe-
titioner]’s unit,” as well as mental health records.
On 2 October 2022, the Government submitted its response to the motion
to compel, wherein trial counsel stated the Government had obtained Peti-
tioner’s “medical file from 1 November 2017 (earliest date of specifica-
tions) through 16 May 2020 (3 months following last alleged specification).”
Trial counsel further stated the Government was preparing a redacted copy of
the records for review by Petitioner’s victims’ counsel and, “if necessary,” in
camera review by the military judge. Trial counsel intended to leave unre-
dacted those portions of the records relating to injuries to Petitioner’s wrist
allegedly caused by the Accused, “materials relating to consultations in which
abuse is alleged,” and “sufficient information to identify dates and locations of
instances that [Petitioner] otherwise received medical consultations.”
On 4 October 2022, the military judge held a hearing on the motion to com-
pel. At the hearing, trial counsel restated that the Government was in posses-
sion of Petitioner’s medical records, to include FAP records, and trial counsel
had reviewed both sets of records. Trial counsel told the military judge that
portions of Petitioner’s medical records were “relevant” to the Defense’s discov-
ery request. According to a subsequent declaration by Major (Maj) DC, the de-
tailed special trial counsel representing the Government at the hearing, Peti-
tioner asserted through her counsel that the FAP records contained materials
privileged under Military Rule of Evidence (Mil. R. Evid.) 513. According to
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In re AL, Misc. Dkt. No. 2022-12
Maj DC, Petitioner did not assert the non-FAP medical records contained Mil.
R. Evid. 513 material, or that any of the records contained material privileged
under Mil. R. Evid. 514. Petitioner’s counsel requested the military judge con-
duct an in camera review of the records to determine their relevance.
On 11 October 2022, the military judge issued a written ruling ordering the
Government to provide all 575 pages of Petitioner’s medical records to the De-
fense, without in camera review. The military judge explained:
Government counsel acknowledged during the motions hearing
that portions of the medical records are relevant in response to
the defense discovery request and the [G]overnment had no ob-
jection to turning the records over to defense counsel.
....
This court finds that the defense counsel has met their burden
to show the information sought exists and is material to the
preparation of the defense. [Petitioner’s] counsel has requested
that the Court review the medical records and FAP records in
camera to determine relevancy. However, here, where the
[G]overnment has reviewed the records, acknowledged the ma-
terial is relevant, and has had the full benefit of reviewing the
material, this Court finds that the [D]efense should not be de-
nied the same opportunity of access. . . .
Wherefore, the Defense Motion to Compel Discovery is
GRANTED. The [G]overnment shall turn over [Petitioner’s]
medical records and the FAP records in their position [sic]. Be-
fore doing so, I am instructing the [G]overnment to redact the
appropriate personally identifiable information in the records
....
The military judge denied a request by Petitioner’s counsel to file a motion for
reconsideration. In subsequent communications, the military judge clarified
that the Prosecution was to turn over all of Petitioner’s FAP records currently
in its possession, and that the military judge would not perform an in camera
review.
On 12 October 2022, Petitioner’s counsel moved the trial court for a stay of
proceedings and a protective order. On 13 October 2022, the military judge
denied the motion to stay proceedings, but issued a protective order limiting
the disclosure of the records in question to the Prosecution, defense counsel,
expert consultants, Petitioner, and Petitioner’s counsel. Eight days later, Peti-
tioner filed the request for this court to issue a stay of proceedings and a writ
of mandamus.
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In re AL, Misc. Dkt. No. 2022-12
In addition to the stay of proceedings, which we previously granted, Peti-
tioner has requested this court (1) vacate the military judge’s ruling with re-
spect to the 21 September 2022 defense motion to compel discovery; and (2)
order the copies of the subject medical and FAP records be destroyed or, in the
alternative, order the military judge to conduct in camera review “that will
apply the standards of relevance and afford protections of Mil. R. Evid. 513 and
[Mil. R. Evid.] 514.”
II. LAW
The All Writs Act, 28 U.S.C. § 1651(a), grants a Court of Criminal Appeals
“authority to issue extraordinary writs necessary or appropriate in aid of its
jurisdiction.” Chapman v. United States, 75 M.J. 598, 600 (A.F. Ct. Crim. App.
2016) (citing Loving v. United States, 62 M.J. 235, 246 (C.A.A.F. 2005)). The
purpose of a writ of mandamus is to “confine an inferior court to a lawful exer-
cise of its prescribed jurisdiction or to compel it to exercise its authority when
it is its duty to do so.” Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 26 (1943)
(citations omitted). In order to prevail on a petition for a writ of mandamus,
the petitioner “must show that: (1) there is no other adequate means to attain
relief; (2) the right to issuance of the writ is clear and indisputable; and (3) the
issuance of the writ is appropriate under the circumstances.” Hasan v. Gross,
71 M.J. 416, 418 (C.A.A.F. 2012) (citing Cheney v. United States Dist. Court,
542 U.S. 367, 380–81 (2004)). A writ of mandamus “is a ‘drastic instrument
which should be invoked only in truly extraordinary situations.’” Howell v.
United States, 75 M.J. 386, 390 (C.A.A.F. 2016) (quoting United States v. La-
bella, 15 M.J. 228, 229 (C.M.A. 1983)).
Article 6b(e)(1), UCMJ, 10 U.S.C. § 806b(e)(1), states:
If the victim[2] of an offense under this chapter believes that . . .
a court-martial ruling violates the rights of the victim afforded
by a section (article) or rule specified in paragraph (4), the victim
may petition the Court of Criminal Appeals for a writ of manda-
mus to require the . . . court-martial to comply with the section
(article) or rule.
Article 6b(e)(4), UCMJ, provides that this right to petition the Court of Crimi-
nal Appeals for a writ of mandamus applies with respect to protections afforded
by, inter alia, Article 6b, UCMJ; Mil. R. Evid. 513; and Mil. R. Evid. 514.
2 Article 6b, UCMJ, refers to the rights of “victims” of offenses under the UCMJ, in-
cluding at pretrial, trial, and post-trial phases of court-martial proceedings. The use of
the term “victim” in this order reflects no determination or implication on the court’s
part as to the merits of the charged offenses in the Accused’s court-martial.
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Article 6b(a), UCMJ, provides that the victim of an offense under the UCMJ
has, among other rights, “[t]he right to be treated with fairness and with re-
spect for the dignity and privacy of the victim . . . .”
In general, disclosure to the defense of documents in the possession of the
prosecution is governed by Rule for Courts-Martial (R.C.M.) 701, whereas pro-
duction to the defense of documents not in the possession, custody, or control
of military authorities is governed by R.C.M. 703. See United States v. Bishop,
76 M.J. 627, 634 (A.F. Ct. Crim. App. 2017); see also United States v. Stellato,
74 M.J. 473, 481 (C.A.A.F. 2015) (citing R.C.M. 701(a)(2)(A)). “Each party shall
have adequate opportunity to prepare its case and equal opportunity to inter-
view witnesses and inspect evidence . . . .” R.C.M. 701(e). “After service of
charges, upon request of the defense, the Government shall permit the defense
to inspect any . . . papers, documents, [or] data . . . if the item is within the
possession, custody, or control of military authorities and [ ] the item is rele-
vant to defense preparation.” R.C.M. 701(a)(2)(A)(i). R.C.M. 703(e)(1) provides
that, in general, “[e]ach party is entitled to the production of evidence which is
relevant and necessary.”
“A covered entity may use or disclose protected health information [without
the individual’s authorization or opportunity to object] to the extent that such
use or disclosure is required by law and the use or disclosure complies with
and is limited to the relevant requirements of such law.” 45 C.F.R.
§ 164.512(a)(1).
Department of Defense Manual (DoDM) 6025.18, Implementation of the
Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule in
DoD Health Care Programs (13 Mar. 2019), provides procedures for Depart-
ment of Defense (DoD) compliance with the privacy regulations adopted under
HIPAA, Public Law 104-191, including at 45 C.F.R. § 164. DoDM 6025.18
¶ 4.4.f.(1)(b)3 provides:
A DoD covered entity may disclose [protected health infor-
mation] [i]n compliance with, and as limited by, the relevant re-
quirements of . . . [a]n administrative request, including an ad-
ministrative subpoena or summons, a civil or an authorized in-
vestigative demand, or similar process authorized under law, if:
[t]he information sought is relevant and material to a legitimate
law enforcement inquiry[;] [t]he request is in writing, specific,
and limited in scope to the extent reasonably practicable in light
of the purpose for which the information is sought[; and] [d]e-
identified information could not reasonably be used.
Article 46(a), UCMJ, 10 U.S.C. § 846(a), provides: “In a case referred for
trial by court-martial, the trial counsel, the defense counsel, and the court-
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martial shall have equal opportunity to obtain witnesses and other evidence in
accordance with such regulations as the President may prescribe.” R.C.M.
703(g)(2) provides: “Evidence under the control of the Government may be ob-
tained by notifying the custodian of the evidence of the time, place, and date
the evidence is required and requesting the custodian to send or deliver the
evidence.”
Mil. R. Evid. 513(a) provides that, in general:
A patient has a privilege to refuse to disclose and to prevent any
other person from disclosing a confidential communication made
between the patient and a psychotherapist or an assistant to the
psychotherapist, in a case arising under the [UCMJ], if such
communication was made for the purpose of facilitating diagno-
sis or treatment of the patient’s mental or emotional condition.
“Before ordering the production or admission of evidence of a patient’s records
or communication, the military judge must conduct a hearing, which shall be
closed. . . . The patient must be afforded a reasonable opportunity to attend the
hearing and be heard.” Mil. R. Evid. 513(e)(2). “The military judge may exam-
ine the evidence or a proffer thereof in camera, if such examination is necessary
to rule on the production or admissibility of protected records or communica-
tions.” Mil. R. Evid. 513(e)(3). Mil. R. Evid. 514 provides a similar privilege and
procedures with respect to confidential communications between an alleged
victim and a victim advocate “made for the purpose of facilitating advice or
assistance to the alleged victim.” Mil. R. Evid. 514(a).
III. ANALYSIS
The petition, responsive briefs, and Petitioner’s replies require us to ad-
dress three distinct issues: (1) whether an alleged victim’s petition under Arti-
cle 6b, UCMJ, must meet the usual standard of review for a petition for a writ
of mandamus, or the lower standard of demonstrating the military judge
abused his discretion; (2) whether Petitioner is entitled to relief based on her
right to be treated with fairness and respect for her dignity and privacy under
Article 6b(a), UCMJ; and (3) whether Petitioner is entitled to relief with re-
spect to the privileges afforded by Mil. R. Evid. 513 or Mil. R. Evid. 514.
A. Standard of Review
Petitioner contends this court should apply the ordinary standard of appel-
late review for a military judge’s ruling regarding discovery: abuse of discre-
tion. See Stellato, 74 M.J. at 480. The Government and Defense contend the
appropriate standard is the three-part test for relief the United States Court
of Appeals for the Armed Forces (CAAF) applied in Hasan, including Peti-
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tioner’s burden to demonstrate her entitlement to relief is “clear and indisput-
able.” 71 M.J. at 418 (citation omitted). We find the standard for mandamus
relief articulated in Hasan applies.
Petitioner notes that the version of the Crime Victims’ Rights Act (CVRA)
codified at 18 U.S.C. § 3771 and in effect prior to 2015 contained a provision
analogous to Article 6b(e)(1), UCMJ, which enabled a crime victim who was
denied relief in district court to “petition the court of appeals for a writ of man-
damus.” 18 U.S.C. § 3771(d)(3). Petitioner further notes there was a split
among the federal circuits regarding whether to apply the usual strict stand-
ards for mandamus relief in the context of appellate review of a district court’s
ruling on rights under the CVRA. Compare, e.g., In re Dean, 527 F.3d 391, 394
(5th Cir. 2008) (applying usual mandamus standards to CVRA appeal); In re
Antrobus, 519 F.3d 1123, 1130 (10th Cir. 2008) (same); with Kenna v. United
States Dist. Court, 435 F.3d 1011, 1017 (9th Cir. 2006) (declining to apply usual
mandamus standards); In re W.R. Huff Asset Mgmt. Co., 409 F.3d 555, 562–63
(2d Cir. 2005) (same). Petitioner argues the specific provision for mandamus
review in Article 6b, UCMJ, is authority independent of this court’s power un-
der the All Writs Act upon which the United States Supreme Court’s decision
in Cheney, 542 U.S. at 380–81, and by extension the CAAF’s decision in Hasan,
were based. Therefore, she reasons, because Article 6b, UCMJ, does not specify
a particular standard of review, the ordinary standards of appellate review
should apply.
We are not persuaded. In May 2015, Congress revised 18 U.S.C.
§ 3771(d)(3) to add the following sentence regarding appeals of CVRA-related
decisions: “In deciding such application, the court of appeals shall apply ordi-
nary standards of appellate review.” However, when Congress subsequently
codified in Article 6b(e), UCMJ, a victim’s right to petition the Court of Crimi-
nal Appeals for a writ of mandamus in November 2015, it did not mirror the
language in the CVRA specifying “ordinary standards of appellate review;” nor
have subsequent changes to the article inserted equivalent language. The im-
plication is that Congress has provided different standards of review for 18
U.S.C. § 3771(d)(3) and Article 6b(e), UCMJ.
“[I]t’s a ‘fundamental canon of statutory construction’ that words generally
should be ‘interpreted as taking their ordinary . . . meaning . . . at the time
Congress enacted the statute.’” New Prime Inc. v. Oliveira, ___ U.S. ___, 139 S.
Ct. 532, 539 (2019) (alteration and omissions in original) (quoting Wisconsin
Central Ltd. v. United States, 138 S. Ct. 2067, 2074 (2018)). In Article 6b(e),
UCMJ, Congress specified that a victim may seek a “writ of mandamus” from
the Court of Criminal Appeals. Giving effect to the plain meaning of the words
of the statute and the longstanding standard for a petitioner to secure manda-
mus relief, we conclude Petitioner bears the burden to demonstrate: “(1) there
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is no other adequate means to attain relief; (2) the right to issuance of the writ
is clear and indisputable; and (3) the issuance of the writ is appropriate under
the circumstances.” Hasan, 71 M.J. at 418 (citation omitted); see also In re HK,
Misc. Dkt. No. 2021-07, 2021 CCA LEXIS 535, at *3 (A.F. Ct. Crim. App. 13
Sep. 2021) (order) (following Hasan and applying the usual standard for man-
damus relief to a petition filed pursuant to Article 6b(e), UCMJ).
B. Article 6b(a), UCMJ, Right to Fairness and Respect for Dignity and
Privacy
Petitioner asserts the military judge’s ruling on the Defense’s motion to
compel violated her right to respect for her privacy under Article 6b(a), UCMJ.
She contends the military judge ignored the fact that the Government unlaw-
fully obtained her records, and the military judge erred by analyzing the mo-
tion as a matter of discovery under R.C.M. 701 rather than a matter of produc-
tion under R.C.M. 703. Petitioner contends that the assistant trial counsel’s 16
June 2022 memorandum to the MTF record custodian was inadequate author-
ity for release of her records to the Prosecution, and that a court order or sub-
poena was required. She further contends that, although at the motion hearing
she agreed with the Government that a portion of her records should be re-
leased to the Defense, the military judge’s ruling that the Defense should re-
ceive all 575 pages of the records in trial counsel’s possession without in cam-
era review was improper. We find Petitioner has not demonstrated she is
clearly and indisputably entitled to relief with respect to her Article 6b(a),
UCMJ, right to respect for her privacy.3
As an initial matter, Petitioner asserts that she has a constitutional right
to privacy that encompasses her confidential medical information. See Doe v.
Southeastern Pa. Transp. Auth., 72 F.3d 1133, 1137 (3d Cir. 1995) (interpreting
Whalen v. Roe, 429 U.S. 589, 599–600 (1977)); A.L.A. v. West Valley City, 26
F.3d 989, 990 (10th Cir. 1994) (citations omitted). However, such a right is not
absolute and “must be weighed against the [G]overnment’s interest in obtain-
ing the records in particular circumstances.” In re Grand Jury Subpoena, 197
F. Supp. 2d 512, 514 (E.D. Va. 2002) (citing Whalen, 429 U.S. at 602; Doe, 72
F.3d at 1138). Petitioner does not assert that HIPAA, its implementing regu-
3 We emphasize that in accordance with Article 6b(e), UCMJ, the issue before us is
Petitioner’s request for relief with regard to the military judge’s ruling on the Defense’s
motion to compel. The propriety of the means by which the Government obtained Pe-
titioner’s records from the MTF is not directly before us, and our conclusion that Peti-
tioner has not met the high standard to demonstrate her entitlement to mandamus
relief with regard to the subject ruling is not a decision as to whether, in other forums
and under ordinary standards of review, Petitioner would be entitled to relief with
regard to how her records were obtained from the MTF.
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lations, or DoDM 6025.18, which govern access to protected health infor-
mation, are unconstitutional in this respect. Accordingly, for purposes of our
analysis of Petitioner’s entitlement to relief under the “clear and indisputable”
standard, we presume that government compliance with these directives
would be sufficient to safeguard Petitioner’s constitutional privacy interest in
her medical records.
HIPAA permits disclosure of protected health information without the in-
dividual’s consent or opportunity to object “to the extent that such use or dis-
closure is required by law and the use or disclosure complies with and is limited
to the relevant requirements of such law.” 45 C.F.R. § 164.512(a)(1). DoDM
6025.18, implementing HIPAA within the DoD, permits certain disclosures for
“law enforcement purposes,” including pursuant to an “administrative request”
that is “authorized by law,” provided the information sought is “relevant and
material to a legitimate law enforcement inquiry;” the “request is in writing,
specific, and limited in scope;” and “[d]e-identified information could not rea-
sonably be used.” DoDM 6025.18 ¶ 4.4.f.(1)(b)3. Article 46(a), UCMJ, provides
trial counsel “shall have” the “opportunity to obtain . . . evidence in accordance
such regulations as the President may prescribe.” R.C.M. 703(g)(2) provides
trial counsel may obtain “[e]vidence under the control of the Government”
simply by “notifying the custodian of the evidence of the time, place, and date
the evidence is required and requesting the custodian to send or deliver the
evidence.”
Assistant trial counsel’s 16 June 2022 memorandum to the MTF records
custodian specifically referred to HIPAA, asserted the request was relevant
and material for a legitimate law enforcement purpose, was in writing and
specifically requested records from a date range relevant to the charged of-
fenses, and asserted de-identified information could not reasonably be used.
The memorandum was evidently intended as an “administrative request” that
satisfied the DoDM 6025.18 ¶ 4.4.f.(1)(b)3 law-enforcement exception. Moreo-
ver, because the records in question were possessed by an MTF on Fort Bragg,
the records were “under the control of the Government,” that is, an agency of
the United States within the DoD. Therefore, under R.C.M. 703(g)(2)—that is,
a regulation prescribed by the President—unlike evidence not under the con-
trol of the Government, it is not apparent that assistant trial counsel’s request
for the MTF records required a subpoena and related due process covered by
R.C.M. 703(g)(3). Accordingly, we are not persuaded that Petitioner has clearly
and indisputably demonstrated the Prosecution unlawfully obtained her med-
ical records from the MTF in violation of her constitutional, statutory, or other
privacy rights.
Assuming for purposes of argument that the Prosecution did improperly
obtain Petitioner’s records, we are not persuaded the military judge clearly and
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indisputably erred by analyzing the Defense’s motion to compel as a matter of
discovery under R.C.M. 701 rather than a matter of production under R.C.M.
703. The military judge was presented with a situation in which, whether by
proper or improper means, the Prosecution was in possession of and had re-
viewed the records. At the motion hearing, Petitioner and the Government ev-
idently conceded at least some of the records should be disclosed to the Defense.
This situation implicates R.C.M. 701. We need not decide and do not suggest
the military judge lacked the authority or discretion to address Petitioner’s
concerns regarding how the Government obtained her records from the MTF,
had Petitioner raised such concerns; however, that was not the issue before the
military judge. The issue for the military judge was the Defense’s request for
access to relevant and material documents in the possession of the Prosecution.
Furthermore, in light of the protective order limiting access to defense
counsel and expert consultants, we find Petitioner has not demonstrated she
is clearly and indisputably entitled to relief on the basis of her right to respect
for her privacy under Article 6b(a), UCMJ, in light of the military judge’s deci-
sion to provide the records to the Defense without in camera review. Certainly,
the military judge had the discretion to resolve the Defense’s motion to compel
in other ways, and we need not and do not specifically indorse his ruling. How-
ever, considering the Defense’s right to access under R.C.M. 701(a)(2) and
R.C.M. 701(e), we are not persuaded the military judge’s decision to forego in
camera review of all of the medical records was clearly and indisputably erro-
neous.
C. Mil. R. Evid. 513 and Mil. R. Evid. 514
In addition to her right for respect for her privacy under Article 6b, UCMJ,
as discussed above, Petitioner invokes the “protections of Mil. R. Evid. 513 and
[Mil. R. Evid.] 514.”
With respect to Mil. R. Evid. 514, the matters provided by Petitioner, the
Government, and the Defense do not substantiate that the medical and FAP
records at issue contain confidential communications between an alleged vic-
tim and victim advocate that would be subject to the rule, or that Petitioner or
either party represented to the military judge that they did. Accordingly, we
find Petitioner has failed to demonstrate her clear and indisputable right to
relief on the basis of Mil. R. Evid. 514.
However, we find Petitioner has demonstrated her entitlement to some re-
lief with respect to Mil. R. Evid. 513. Maj DC’s declaration confirms that Peti-
tioner’s counsel did assert to the military judge that the FAP records in partic-
ular contained material privileged under Mil. R. Evid. 513. The petition and
the Government’s brief both indicate that Mil. R. Evid. 513 was raised. The
Defense states “neither Petitioner nor the Government made firm assertions
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to the military judge that Petitioner’s records included information subject to
Mil. R. Evid. 513.” However, the Defense does not deny Petitioner’s counsel
invoked Mil. R. Evid. 513 to some extent, and has not provided matter for our
consideration that contradicts Maj DC’s declaration. The military judge’s rul-
ing on the defense motion to compel is silent on the matter, and in fact does
not refer to Mil. R. Evid. 513 at all. Although we have not requested or been
provided a recording or transcript of the motion hearing itself, we find Maj
DC’s unimpeached declaration is a sufficient factual basis to conclude Peti-
tioner’s counsel asserted the FAP records contained Mil. R. Evid. 513 material.
Mil. R. Evid. 513(a) generally provides a patient “a privilege to refuse to
disclose and to prevent any other person from disclosing” subject communica-
tions between the patient and psychotherapist or assistant. (Emphasis added).
Certain enumerated exceptions exist, and the Courts of Criminal Appeals have
suggested the continuing existence of a non-enumerated “constitutionally re-
quired” exception. See United States v. Morales, No. ACM 39018, 2017 CCA
LEXIS 612, at *12–28 (A.F. Ct. Crim. App. 13 Sep. 2017) (unpub. op.). How-
ever, before a military judge orders “the production or admission of evidence of
a patient’s records or communication, the military judge must conduct a hear-
ing, which shall be closed,” where the patient “must be afforded a reasonable
opportunity to attend . . . and be heard.” Mil. R. Evid. 513(e)(2) (emphasis
added). The matters before us establish the military judge ordered the disclo-
sure of FAP records as to which Petitioner asserted the Mil. R. Evid. 513 priv-
ilege without holding the required closed hearing.
As noted above, the military judge’s order did not address Mil. R. Evid. 513
at all. Therefore, we cannot be certain how the military judge analyzed the
application of the rule. For purposes of our analysis, we considered that one
might subject the term “production” to a narrow interpretation echoing the dis-
tinction in R.C.M. 701 and R.C.M. 703 between “discovery” and “production.”
Thus, one might argue that discovery from one party to another under R.C.M.
701 is distinct from “production” and does not trigger the application of Mil. R.
Evid. 513(e)(2). However, we find such a cramped interpretation of “produc-
tion” and the application of Mil. R. Evid. 513(e)(2) is not appropriate. The core
privilege established by Mil. R. Evid. 513(a) broadly empowers a patient to
prevent any disclosure from one person to another, and the military judge’s
ruling purported to compel such a disclosure. See United States v. Beauge, 82
M.J. 157, 161 (C.A.A.F. 2022) (“[Mil. R. Evid.] 513(e) provides the procedure
that must be followed when a party seeks to discover information pursuant to
any of the enumerated exceptions.” (Emphasis added).).
Accordingly, we conclude Petitioner has clearly and indisputably demon-
strated she is entitled to relief with respect to Mil. R. Evid. 513 and the FAP
records. Moreover, we find there is no other adequate means to secure relief,
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In re AL, Misc. Dkt. No. 2022-12
as Congress has specifically authorized Petitioner to seek mandamus relief
from this court for a military judge’s ruling affecting protections afforded her
by Mil. R. Evid. 513. Furthermore, we find the issuance of such a writ is ap-
propriate under the circumstances.
Accordingly, it is by the court on this 7th day of December, 2022,
ORDERED:
Petitioner’s petition for extraordinary relief in the nature of a writ of man-
damus is GRANTED IN PART and DENIED IN PART. The military judge’s
11 October 2022 ruling granting the defense motion to compel discovery is SET
ASIDE IN PART, specifically with respect to the FAP records in the Govern-
ment’s possession. The defense motion to compel discovery remains pending
before the military judge with regard to the FAP records in the Government’s
possession.
The stay of proceedings issued by this court on 24 October 2022 is hereby
REMOVED. Court-martial proceedings may resume consistent with this or-
der and with Mil. R. Evid. 513.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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