E. v. v. Eugene Robinson, Jr. , 906 F.3d 1082 ( 2018 )


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  •                      FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    E. V.,                                            No. 16-16975
    Plaintiff-Appellant,
    D.C. No.
    v.                          2:16-cv-01973-
    JAM-CKD
    EUGENE H. ROBINSON, JR.,
    Lieutenant Colonel, U.S. Marine
    Corps, in his capacity as Military                   OPINION
    Judge; DAVID A. MARTINEZ,
    Sergeant, U.S. Marine Corps., as
    Indispensable Party,
    Defendants-Appellees.
    Appeal from the United States District Court
    for the Eastern District of California
    John A. Mendez, District Judge, Presiding
    Argued and Submitted June 14, 2018
    San Francisco, California
    Filed October 17, 2018
    Before: Eugene E. Siler, * Richard A. Paez,
    and Sandra S. Ikuta, Circuit Judges.
    Opinion by Judge Paez
    *
    The Honorable Eugene E. Siler, United States Circuit Judge for the
    U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
    2                       E.V. V. ROBINSON
    SUMMARY **
    Sovereign Immunity
    The panel affirmed the district court’s dismissal on
    sovereign immunity grounds of an action brought by E.V., a
    civilian on a military base in Japan, seeking to enjoin the
    release of her mental health records.
    E.V. filed this action against Judge Robinson in his
    official capacity as a military judge who presided over the
    court-martial of a service member accused of sexually
    assaulting E.V. Judge Robinson conducted an in camera
    review of E.V.’s mental health records and ordered that
    portions of those records be released to the court-martial
    parties pursuant to a qualified protective order.
    The panel applied the framework set out in Larson v.
    Domestic & Foreign Commerce Corp., 
    337 U.S. 682
    (1949),
    and held that sovereign immunity barred E.V.’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. The panel further
    held that, under Larson, E.V.’s constitutional claims were
    considered to be against Judge Robinson as an individual
    and thus were not barred by sovereign immunity. The panel
    concluded, however, that E.V.’s constitutional claims must
    be dismissed on other grounds.
    **
    This summary constitutes no part of the opinion of the court. It
    has been prepared by court staff for the convenience of the reader.
    E.V. V. ROBINSON                       3
    Specifically, the panel held: (1) the 1976 amendment to
    section 702 of the Administrative Procedure Act did not
    abrogate the Larson framework in suits where section 702’s
    waiver of sovereign immunity did not apply; (2) under
    Larson, suits for specific relief that were pleaded against
    federal officials in their official capacities were not per se
    barred by sovereign immunity; (3) E.V.’s non-constitutional
    claims were barred by sovereign immunity because they did
    not allege ultra vires action for purposes of the Larson
    framework, and the government had not waived its
    sovereign immunity over such claims; (4) E.V.’s Fourth
    Amendment allegations were not “against the government”
    under Larson and thus were not barred by sovereign
    immunity, but such allegations failed to state a claim under
    Fed. R. Civ. P. 12(b)(6); and (5) E.V.’s constitutional claim
    challenging Judge Robinson’s reliance on the
    “constitutionally required” evidentiary exception was
    similarly not barred by sovereign immunity, but failed for
    lack of redressability.
    COUNSEL
    Peter Coote (argued), Pennoni Associates Inc., Philadelphia,
    Pennsylvania, for Plaintiff-Appellant.
    Gregory Thomas Broderick (argued), Assistant United
    States Attorney, United States Attorney’s Office,
    Sacramento, California, for Defendants-Appellees.
    4                    E.V. V. ROBINSON
    OPINION
    PAEZ, Circuit Judge:
    We must decide whether the doctrine of federal
    sovereign immunity bars this suit for injunctive relief against
    Lieutenant Colonel Eugene H. Robinson, Jr., (“Judge
    Robinson”) in his official capacity as a military judge. Judge
    Robinson presided over the court-martial of a service
    member accused of sexually assaulting appellant E.V., a
    civilian, on a military base in Japan. In the course of the
    court-martial proceedings, Judge Robinson conducted an in
    camera review of E.V.’s mental health records and
    subsequently ordered that portions of those records be
    released to the court-martial parties pursuant to a qualified
    protective order.
    E.V. sought review of that ruling in the military courts,
    but was not successful. She then filed this action in federal
    court. She alleges violations of the Military Rules of
    Evidence, the Uniform Code of Military Justice, and the
    Constitution, and initially sought to enjoin the release of her
    mental health records. After the district court dismissed the
    complaint on sovereign immunity grounds, however, Judge
    Robinson released E.V.’s mental health records subject to
    the terms of the protective order. In light of this
    development, E.V. seeks an order requiring Judge Robinson
    to destroy all copies of the records in his possession and to
    instruct the court-martial parties to do likewise.
    Applying the framework set out in Larson v. Domestic
    & Foreign Commerce Corp., 
    337 U.S. 682
    (1949), we
    conclude that sovereign immunity bars E.V.’s non-
    constitutional claims for injunctive relief because those
    claims are considered to be against the government and the
    government has not waived its immunity. We further
    E.V. V. ROBINSON                        5
    conclude that, under Larson, E.V.’s constitutional claims are
    considered to be against Judge Robinson as an individual
    and thus are not barred by sovereign immunity. We can
    affirm the district court on any basis supported by the record,
    however, and we conclude that E.V.’s constitutional claims
    must be dismissed on other grounds. Accordingly, we affirm
    the dismissal of the complaint and the denial of E.V.’s
    motion for injunctive relief.
    I.
    A.
    This case arises out of the court-martial of Marine Corps
    Sergeant David Martinez, who was charged with sexually
    assaulting E.V. on New Year’s Eve 2014. At the time of the
    alleged assault, E.V. was residing on Kadena Air Base in
    Okinawa, Japan, with her husband, a staff sergeant in the
    United States Air Force. Sgt. Martinez was their neighbor
    on the base.
    On February 12, 2015, E.V.’s husband requested a
    compassionate reassignment from Kadena Air Base to
    Travis Air Force Base in California so that E.V. would be
    separated from Sgt. Martinez and closer to her family.
    E.V.’s husband’s commanding officer recommended
    approval of the request on February 17, 2015, but over the
    next three days, the reassignment review office repeatedly
    requested substantiating documentation for the transfer.
    On February 20, 2015, E.V. was admitted to the U.S.
    Naval Hospital Okinawa (“Naval Hospital”) for suicidal
    ideations. She was discharged on February 23, 2015. The
    same day, E.V.’s husband submitted E.V.’s two-page patient
    discharge summary in support of his request for
    compassionate reassignment. The reassignment request was
    6                    E.V. V. ROBINSON
    finally approved in March 2015, and E.V. and her husband
    returned to the United States. E.V., who had sought
    psychotherapy counseling at the Kadena Health Clinic from
    January to March 2015, continued to seek psychotherapy
    counseling upon her return.
    B.
    In June 2015, Sgt. Martinez was charged with two
    violations of the Uniform Code of Military Justice
    (“UCMJ”) relating to the alleged sexual assault on E.V., and
    the case was referred to a general court-martial. Judge
    Robinson presided as the military judge.
    During the court-martial proceedings, Sgt. Martinez
    requested notice of whether E.V. sought mental health
    treatment in connection with the allegations in the case, as
    well as the records of any such treatment. The military
    prosecutor responded that E.V. had sought mental health
    treatment but, along with E.V.’s special victims counsel,
    opposed the request to produce the treatment records. The
    military prosecutor and special victims counsel asserted that
    E.V.’s mental health records were irrelevant and privileged
    under Military Rule of Evidence 513 (“MRE 513”), which
    codifies the psychotherapist-patient privilege. Sgt. Martinez
    moved to compel production of the mental health records,
    or, in the alternative, for Judge Robinson to conduct an in
    camera review to determine whether the records were
    discoverable. See MRE 513(e)(3) (setting out procedural
    requirements for conducting in camera review of
    psychotherapist-patient records). Judge Robinson denied
    the motion, viewing it as an invitation to “engage in a fishing
    expedition” into E.V.’s mental health records.
    In the course of discovery, however, the military
    prosecutor ultimately provided Judge Robinson with two
    E.V. V. ROBINSON                       7
    pages of non-privileged mental health records for in camera
    review. The records consisted of the February 2015 patient
    discharge summary prepared by the Naval Hospital
    following E.V.’s admission for suicidal ideations. Judge
    Robinson then released those records to Sgt. Martinez
    subject to a protective order, as it was undisputed that any
    privilege had been waived as a result of the records’ prior
    disclosure to support E.V.’s husband’s reassignment request.
    In light of the information contained in the records, Sgt.
    Martinez moved for Judge Robinson to reconsider his prior
    denial of the motion to compel production of E.V.’s mental
    health records or conduct an in camera review.
    On January 13, 2016, Judge Robinson granted the
    motion for reconsideration as it related to the request for in
    camera review of E.V.’s mental health records, stating that
    he would determine whether releasing the records “meets a
    standard under Mil. R. Evid. 513, with a particular emphasis
    on bias/motive to fabricate.” Two weeks later, Judge
    Robinson granted the motion for reconsideration as it related
    to releasing portions of E.V.’s mental health records, with
    redactions and subject to a protective order. Judge Robinson
    did not provide a reasoned explanation for granting
    reconsideration, although he clarified that “the material
    covered by this Order is not admitted into evidence, but is
    made available to the parties for their possible use in
    examining and cross-examining E.V. at trial concerning a
    possible bias or motive to fabricate.”
    Subsequently, on February 19, 2016, Judge Robinson
    sua sponte issued a supplemental order setting out his
    reasoning for granting reconsideration. In the supplemental
    order, Judge Robinson relied on two independent grounds
    for releasing E.V.’s mental health records: (1) MRE
    8                        E.V. V. ROBINSON
    513(d)(5) (the “crime-fraud exception”) 1 and (2) the
    “constitutionally required” exception. With respect to the
    crime-fraud exception, Judge Robinson reasoned that the
    “evidence presented cast doubts on the validity of any
    suicidal ideations in this case,” and “the timing of the report
    [of the patient discharge summary] and treatment show Mrs.
    E.V.’s tactical use (i.e., fraud) of the process to obtain a
    material gain.” As for the “constitutionally required”
    exception, Judge Robinson recognized that former MRE
    513(d)(8) codifying the exception had been repealed, but he
    concluded that the “same exception appears in Mil. R. Evid.
    412(b)(1)(C).” 2 Judge Robinson further concluded that,
    because the mental health records were relevant, material,
    and had probative value outweighing the danger of unfair
    prejudice, they were “constitutionally required.”
    C.
    On February 25, 2016, E.V. filed a petition for a writ of
    mandamus in the Navy-Marine Corps Court of Criminal
    Appeals (“NMCCA”) under UCMJ Article 6b(e), seeking to
    1
    Under the crime-fraud exception, the psychotherapist-patient
    privilege does not apply “if 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.” MRE 513(d)(5).
    2
    Military Rule of Evidence 412(b)(1)(C) provides that, in a criminal
    case, a military judge may admit “evidence whose exclusion would
    violate the constitutional rights of the accused.” This is an exception to
    Military Rule of Evidence 412(a), which provides that, in any proceeding
    involving alleged sexual misconduct, evidence offered “to prove that a
    victim engaged in other sexual behavior” or “to prove a victim’s sexual
    predisposition” is inadmissible.
    E.V. V. ROBINSON                             9
    enjoin the release of her mental health records. The
    NMCCA denied the petition. Recognizing that Judge
    Robinson’s reliance on the “constitutionally required” test
    under Military Rule of Evidence 412 was erroneous, the
    NMCCA nonetheless concluded that there was no “clear and
    indisputable” error in the crime-fraud ruling. E.V. next
    sought a writ of mandamus in the Court of Appeals for the
    Armed Forces (“CAAF”) under the All Writs Act, 28 U.S.C.
    § 1651. The CAAF dismissed the petition for lack of
    jurisdiction, reasoning that it could only exercise its
    mandamus jurisdiction under the All Writs Act in aid of its
    pre-existing statutory jurisdiction, and that Congress granted
    only the NMCCA statutory jurisdiction over a victim’s
    mandamus petition. 3
    D.
    In July 2016, E.V. filed this action in the District Court
    for the District of Columbia against Judge Robinson in his
    official capacity as a military judge, seeking injunctive
    relief. 4 The complaint alleges three non-constitutional
    claims: (1) that Judge Robinson’s in camera review order
    violated MRE 513(e)(3); (2) that Judge Robinson’s
    subsequent order to release E.V.’s mental health records
    violated MRE 513(e)(4); and (3) that Judge Robinson
    violated E.V.’s right under UCMJ Article 6b to be treated
    with fairness and with respect for her dignity and privacy.
    The complaint also alleges two constitutional claims: (1) that
    Judge Robinson violated E.V.’s Fourth Amendment right to
    3
    Following the district court’s dismissal of this case, the Marine
    Corps proceeded with the court-martial in March 2017. Sgt. Martinez
    was acquitted of all charges.
    4
    The complaint also names Sgt. Martinez as an “indispensable
    party” defendant, but does not allege any claims against him directly.
    10                       E.V. V. ROBINSON
    be secure in her private possessions; and (2) that Judge
    Robinson unlawfully usurped Article III power by implicitly
    declaring a statute—here, the repeal of the “constitutionally
    required” exception in former MRE 513(d)(8)—
    unconstitutional.   E.V. also moved for a temporary
    restraining order (“TRO”) and preliminary injunction
    prohibiting Judge Robinson from releasing her mental health
    records—which Judge Robinson had not yet released—and
    ordering him to destroy any such records in his possession. 5
    Judge Robinson filed a motion to dismiss and a response
    to E.V.’s request for injunctive relief. The district court did
    not rule on either motion because it concluded that venue
    was improper and thus transferred the case to the Eastern
    District of California, where E.V. resides. E.V. v. Robinson,
    
    200 F. Supp. 3d 108
    , 114 (D.D.C. 2016). Following the
    transfer, the parties submitted supplemental briefing on the
    question whether E.V.’s action was barred by the doctrine of
    sovereign immunity.
    The district court granted the motion to dismiss and
    denied E.V.’s motion for injunctive relief on sovereign
    immunity grounds. Relying on Gilbert v. DaGrossa,
    
    756 F.2d 1455
    (9th Cir. 1985), the court concluded that
    E.V.’s suit against Judge Robinson in his official capacity
    5
    At various times in the district court and this court, E.V. has
    asserted that she is seeking a writ of mandamus, although the complaint
    mentions mandamus only in the paragraph alleging jurisdiction.
    Consistent with the complaint’s prayer for relief, we refer to E.V.’s
    requested relief as an injunction rather than a writ of mandamus, but our
    analysis does not depend on this distinction. See Mashiri v. Dep’t of
    Educ., 
    724 F.3d 1028
    , 1031 (9th Cir. 2013) (“[I]n general, ‘the bar of
    sovereign immunity’ applies to mandamus petitions.” (quoting Smith v.
    Grimm, 
    534 F.2d 1346
    , 1352 n.9 (9th Cir. 1976)).
    E.V. V. ROBINSON                              11
    “constitutes a suit against the United States” for purposes of
    sovereign immunity. The district court also concluded that
    Congress did not waive the government’s immunity from
    suit in federal district court when it provided victims a
    limited right to seek mandamus relief in the military Court
    of Criminal Appeals. Because the district court resolved the
    case on sovereign immunity grounds, it declined to address
    the remaining “equitable jurisdiction” and merits questions.6
    E.V. timely appealed. 7 “[I]t is familiar law that a federal
    court always has jurisdiction to determine its own
    jurisdiction.” United States v. Ruiz, 
    536 U.S. 622
    , 628
    (2002); see also Mills v. United States, 
    742 F.3d 400
    , 404
    (9th Cir. 2014) (determining the court’s subject matter
    jurisdiction in a sovereign immunity case). Thus, we may
    6
    Under Schlesinger v. Councilman, 
    420 U.S. 738
    (1975), even
    where a district court has subject matter jurisdiction, it should decline to
    exercise its “equitable jurisdiction” to “interven[e], by injunction or
    otherwise, in pending court-martial proceedings” unless a court-martial
    ruling is “void” as a result of a “fundamental defect.” 
    Id. at 740,
    746–
    47.
    7
    After the district court dismissed the complaint, Judge Robinson
    released E.V.’s redacted mental health records to the court-martial
    parties. Judge Robinson thereafter filed a motion to dismiss this appeal
    as moot. E.V. opposed the motion, arguing, inter alia, that a federal court
    could still provide her a concrete and real remedy by ordering Judge
    Robinson to destroy all copies of the mental health records in his
    possession and to order trial and defense counsel to do likewise. A
    motions panel of this court denied the motion without prejudice,
    allowing Judge Robinson to renew the mootness argument in his
    answering brief. Judge Robinson has not renewed his mootness
    argument, but we have an independent obligation to consider our subject
    matter jurisdiction in the face of possible mootness, Sherman v. U.S.
    Parole Comm’n, 
    502 F.3d 869
    , 871 (9th Cir. 2007), and we conclude that
    this case is not moot, see Church of Scientology v. United States,
    
    506 U.S. 9
    , 13–14 (1992).
    12                   E.V. V. ROBINSON
    properly decide the threshold issue of sovereign immunity
    without reaching the question whether E.V. has brought a
    petition for writ of mandamus, 28 U.S.C. § 1361, or whether
    we have jurisdiction over E.V.’s nonconstitutional claims on
    some other basis.
    II.
    “Suits against the government are barred for lack of
    subject matter jurisdiction unless the government expressly
    and unequivocally waives its sovereign immunity.” 
    Mills, 742 F.3d at 404
    . Thus, to determine whether the district
    court has subject matter jurisdiction over E.V.’s claims, we
    must answer two questions: (1) whether E.V.’s claims are
    “against the government” for purposes of sovereign
    immunity, and, if so, (2) whether the government has waived
    its sovereign immunity over those claims. 
    Id. Reviewing these
    questions de novo, see Clinton v.
    Babbitt, 
    180 F.3d 1081
    , 1086 (9th Cir. 1999), we begin our
    analysis with the sovereign immunity framework set out in
    Larson, 
    337 U.S. 682
    . Contrary to Judge Robinson’s
    arguments, we conclude that Larson has not been abrogated
    in the present context, and that Larson’s framework applies
    in official capacity suits such as this one. We therefore apply
    the Larson framework and conclude that sovereign
    immunity bars E.V.’s non-constitutional claims because
    they are “against the government” and the government has
    not waived its immunity. We further conclude that E.V.’s
    constitutional claims are not “against the government” and
    thus not barred by sovereign immunity, 
    id. at 688,
    701–02,
    but “[w]e can affirm the district court on any basis supported
    by the record,” Wood v. City of San Diego, 
    678 F.3d 1075
    ,
    1086 (9th Cir. 2012), and we affirm the dismissal of these
    claims on other grounds.
    E.V. V. ROBINSON                            13
    A.
    E.V. argues that her claims against Judge Robinson are
    not “against the government” for purposes of sovereign
    immunity in light of the Supreme Court’s holding in Larson,
    
    337 U.S. 682
    . As the parties dispute the present applicability
    and scope of the Larson framework, we begin by reviewing
    Larson itself.
    In Larson, the Court held that sovereign immunity barred
    a breach of contract suit against the Administrator of the War
    Assets Administration seeking to enjoin the shipment of coal
    to third parties. 
    Id. at 684–85.
    The Court explained that “the
    crucial question is whether the relief sought in a suit
    nominally addressed to the officer is relief against the
    sovereign.” 
    Id. at 687.
    The Court recognized that “[t]here
    may be, of course, suits for specific relief”—“i.e., the
    recovery of specific property or monies, ejectment from
    land, or injunction either directing or restraining the
    defendant officer’s actions”—“against officers of the
    sovereign which are not suits against the sovereign.” 
    Id. at 688–89.
    Those suits, the Court continued, fall into two
    categories: (1) suits alleging that a federal official acted ultra
    vires of statutorily delegated authority, and (2) suits alleging
    that a federal official violated the Constitution. 8 See 
    id. at 689–90,
    701–02.
    8
    Courts use a variety of shorthands to refer to this framework,
    including the “Larson-Dugan exception,” Mashiri v. Dep’t of Educ.,
    
    724 F.3d 1028
    , 1031 (9th Cir. 2013), the “Larson-Malone test,” Block v.
    N. Dakota ex rel. Bd. of Univ. & Sch. Lands, 
    461 U.S. 273
    , 282 (1983),
    and the “Ex parte Young fiction,” E.E.O.C. v. Peabody W. Coal Co.,
    
    610 F.3d 1070
    , 1085 (9th Cir. 2010). The latter shorthand is confusing
    because the Larson framework is not identical to the Ex Parte Young
    fiction that is commonly invoked in the Eleventh Amendment context.
    14                      E.V. V. ROBINSON
    As for the first category, the Larson Court explained:
    [W]here the officer’s powers are limited by
    statute, his actions beyond those limitations
    are considered individual and not sovereign
    actions. The officer is not doing the business
    which the sovereign has empowered him to
    do or he is doing it in a way which the
    sovereign has forbidden. His actions are ultra
    vires his authority and therefore may be made
    the object of specific relief.
    
    Id. at 689.
    The Court then distinguished between suits
    alleging that a federal official acted in “conflict with the
    terms of his valid statutory authority,” which are considered
    suits against the individual rather than the government, and
    suits alleging that a federal official simply made an
    “incorrect decision as to law or fact,” which are against the
    government and thus barred unless immunity is waived. 
    Id. at 695.
    The Court explained the rationale for the distinction
    as follows: “relief can be granted, without impleading the
    sovereign, only because of the officer’s lack of delegated
    power. A claim of error in the exercise of that power is
    therefore not sufficient.” 
    Id. at 690
    (emphasis added).
    With regard to the second category—i.e., suits alleging
    constitutional violations—the Court explained that where
    “the statute or order conferring power upon the officer to
    take action in the sovereign’s name is claimed to be
    unconstitutional . . . the conduct against which specific relief
    is sought is beyond the officer’s powers and is, therefore, not
    See Verizon Maryland, Inc. v. Pub. Serv. Comm’n of Md., 
    535 U.S. 635
    ,
    645 (2002). Throughout this opinion, we refer to the two categories in
    Larson collectively as the “Larson framework” or “Larson exceptions.”
    E.V. V. ROBINSON                          15
    the conduct of the sovereign.” 
    Id. In addition,
    even where a
    suit does not allege that a statutory delegation of authority is
    itself unconstitutional, the suit is not “against the sovereign”
    if it alleges that the official acted in an unconstitutional
    manner. See 
    id. at 691,
    701–02. Because the petitioner in
    Larson did not claim (1) that the Administrator had acted
    beyond “a limitation on [his] delegated power to refuse
    shipment [of coal] in cases in which he believed the United
    States was not obliged to deliver,” or (2) that the
    Administrator had acted “unconstitutionally or pursuant to
    an unconstitutional grant of power,” the suit was “against the
    Government” for purposes of sovereign immunity. 
    Id. at 688,
    691.
    The Court reaffirmed the validity of the Larson
    exceptions in Malone v. Bowdoin, 
    369 U.S. 643
    , 647 (1962)
    and, one year later, in Dugan v. Rank, 
    372 U.S. 609
    , 621–22
    (1963). Today, Dugan continues to provide the Court’s most
    recent formulation of the Larson exceptions: a suit against a
    federal official for specific relief is not considered to be
    against the government, and thus is not barred by sovereign
    immunity, where the plaintiff alleges: “(1) action by officers
    beyond their statutory powers [or] (2) even though within the
    scope of their authority, the powers themselves or the
    manner in which they are exercised are constitutionally
    
    void.” 372 U.S. at 621
    –22 (citing 
    Malone, 369 U.S. at 647
    );
    see also, e.g., Hawaii v. Gordon, 
    373 U.S. 57
    , 58 (1963) (per
    curiam) (applying Dugan and concluding that sovereign
    immunity barred a suit for specific relief against a federal
    official); City of Fresno v. California, 
    372 U.S. 627
    , 628–29
    (1963) (same). 9
    9
    Although 1963 marks the Court’s latest application of the Larson
    framework in the context of federal sovereign immunity, the Court has
    16                        E.V. V. ROBINSON
    B.
    We turn to Judge Robinson’s first threshold challenge to
    the application of the Larson framework in this case.
    Relying on E.E.O.C. v. Peabody W. Coal Co., 
    610 F.3d 1070
    , 1085 (9th Cir. 2010), Judge Robinson argues that
    Congress abrogated the Larson exceptions in their entirety
    in 1976 by adding an express waiver of sovereign immunity
    to section 702 of the Administrative Procedure Act (“APA”),
    5 U.S.C. § 702. We conclude that the 1976 amendment
    superseded the Larson exceptions only for suits in which the
    amendment’s waiver provision applies, but did not abrogate
    the exceptions where the waiver does not apply. And,
    because the waiver does not apply here, E.V. may invoke the
    Larson exceptions.
    We begin with the text of the 1976 amendment to section
    702 of the APA. The amendment enacted an express waiver
    of sovereign immunity by adding the second sentence in
    current section 702:
    An action in a court of the United States
    seeking relief other than money damages and
    more recently applied the Larson framework in the context of state
    sovereign immunity. See Pennhurst State Sch. & Hosp. v. Halderman,
    
    465 U.S. 89
    , 101–02 n.11, 113–17 (1984); Fla. Dep’t of State v. Treasure
    Salvors, Inc., 
    458 U.S. 670
    , 688–89, 693–97 (1982). Referring to
    Larson’s ultra vires category as “a narrow and questionable exception”
    to the “general rule that a suit is against the State if the relief will run
    against it,” the Court in Pennhurst stated that Larson, Treasure Salvors,
    “and other modern cases make clear that a state officer may be said to
    act ultra vires only when he acts without any authority 
    whatever.” 465 U.S. at 101
    –02 n.11. We subsequently relied on Pennhurst when
    discussing the scope of Larson’s ultra vires category in the context of
    federal sovereign immunity in United States v. Yakima Tribal Court,
    
    806 F.2d 853
    , 860 (9th Cir. 1986); see infra p. 25.
    E.V. V. ROBINSON                      17
    stating a claim that an agency or officer or
    employee thereof acted or failed to act in an
    official capacity or under color of legal
    authority shall not be dismissed nor relief
    therein denied on the ground that it is against
    the United States or that the United States is
    an indispensable party.
    Pub. L. No. 94-574, 90 Stat. 2721 (1976) (codified at
    5 U.S.C. § 702). As we recognized in a prior case, the House
    report accompanying the 1976 amendment stated that “the
    time [has] now come to eliminate the sovereign immunity
    defense in all equitable actions for specific relief against a
    Federal agency or officer acting in an official capacity.”
    Presbyterian Church (U.S.A.) v. United States, 
    870 F.2d 518
    , 525 (9th Cir. 1989) (quoting H.R. Rep. No. 94-1656, at
    9 (1976), reprinted in 1976 U.S.C.C.A.N. 6121, 6129). By
    largely eliminating the federal sovereign immunity defense,
    Congress intended the new waiver provision to “be a safety-
    valve to ensure greater fairness and accountability in the
    administrative machinery of the Government.” H.R. Rep.
    No. 94-1656, at 9. The House report also “referred
    disapprovingly” to the prevailing sovereign immunity
    doctrine (including the Larson framework), Presbyterian
    
    Church, 870 F.2d at 525
    , characterizing it as a source of
    confusion and an unnecessary drain on judicial resources,
    see H.R. Rep. No. 94-1656, at 5–10. Thus, Congress’s
    “plain intent” was to “eliminate[e] the need to invoke the
    [Larson exceptions]” by expressly waiving the
    government’s sovereign immunity. Presbyterian 
    Church, 870 F.2d at 526
    .
    Consistent with this understanding of congressional
    intent, we subsequently recognized in Peabody that “since
    1976 federal courts have looked to § 702 . . . to serve the
    18                    E.V. V. ROBINSON
    purposes of the [Larson exceptions] in suits against federal
    
    officers.” 610 F.3d at 1085
    . In other words, section 702’s
    waiver of sovereign immunity “replaced the [Larson
    exceptions] as the doctrinal basis for a claim for prospective
    relief.” 
    Id. (citing Presbyterian
    Church, 870 F.2d at 525
    –
    26). In recognizing this doctrinal substitution, however, we
    did not also conclude that Congress intended to expand the
    government’s sovereign immunity by abrogating the Larson
    exceptions in cases not covered by the section 702 waiver.
    We similarly decline to reach such a conclusion here.
    First, neither the text nor the structure of the 1976
    amendment to the APA indicates that Congress intended to
    abrogate the Larson exceptions in cases not covered by the
    section 702 waiver. Although a “precisely drawn, detailed
    statute pre-empts more general remedies” that would
    otherwise be available under Larson, Block v. N. Dakota ex
    rel. Bd. of Univ. & Sch. Lands, 
    461 U.S. 273
    , 285 (1983);
    State v. Babbitt, 
    75 F.3d 449
    , 452–53 (9th Cir. 1996), a
    single sentence in section 702 of the APA, even in
    combination with other APA provisions, does not constitute
    such a statute. Cf. 
    Block, 461 U.S. at 275
    n.1, 284–86
    (setting out the relevant provisions of the Quiet Title Act of
    1972 and holding that it abrogated the Larson exceptions in
    all suits challenging the United States’ title to real property).
    Nor does the legislative history of the 1976 amendment
    support Judge Robinson’s argument. The House report
    clearly indicates that Congress intended for the 1976
    amendment to supersede the Larson exceptions by
    eliminating the sovereign immunity defense, but it does not
    indicate that Congress also intended to abrogate the Larson
    exceptions by expanding the sovereign immunity defense.
    Indeed, such an abrogation would run directly contrary to
    Congress’s overarching intent in enacting the amendment,
    E.V. V. ROBINSON                           19
    which was to remove the government’s sovereign immunity
    in actions for prospective relief. See Presbyterian 
    Church, 870 F.2d at 525
    –26; H.R. Rep. No. 94-1656, at 1 (stating that
    the purpose of the amendment is “to remove the defense of
    sovereign immunity as a bar to judicial review of Federal
    administrative action otherwise subject to judicial review”
    (emphasis added)). As this legislative history is ambiguous
    at best, it does not provide a sufficient basis for recognizing
    the complete abrogation of the Larson exceptions. See
    Exxon Mobil Corp. v. Allapattah Servs., Inc., 
    545 U.S. 546
    ,
    569–71 (2005).
    In addition, although we have not previously considered
    the precise argument Judge Robinson raises here, we have
    consistently applied the Larson framework after the 1976
    amendment to section 702 where its waiver does not apply.
    See Tucson Airport Auth. v. Gen. Dynamics Corp., 
    136 F.3d 641
    , 648 (9th Cir. 1998); United States v. Yakima Tribal
    Court, 
    806 F.2d 853
    , 859–60 (9th Cir. 1986); Aminoil
    U.S.A., Inc. v. Cal. State Water Res. Control Bd., 
    674 F.2d 1227
    , 1233–34 (9th Cir. 1982); Martinez v. Marshall,
    
    573 F.2d 555
    , 560 (9th Cir. 1977); Starbuck v. City & Cty.
    of San Francisco, 
    556 F.2d 450
    , 457 n.14 (9th Cir. 1977).
    And we are not alone in doing so. See Dotson v. Griesa,
    
    398 F.3d 156
    , 177 & n.15 (2d Cir. 2005); Made in the USA
    Found. v. United States, 
    242 F.3d 1300
    , 1308–09 n.20 (11th
    Cir. 2001); Clark v. Library of Cong., 
    750 F.2d 89
    , 102 (D.C.
    Cir. 1984). 10 Most recently, in Mashiri v. Department of
    Education, 
    724 F.3d 1028
    (9th Cir. 2013) (per curiam), we
    10
    We are not aware of any case holding that the Larson exceptions
    have been abrogated in their entirety, although the Fifth and Tenth
    Circuits have reserved the question. See Danos v. Jones, 
    652 F.3d 577
    ,
    582 (5th Cir. 2011); Wyoming v. United States, 
    279 F.3d 1214
    , 1236
    (10th Cir. 2002).
    20                   E.V. V. ROBINSON
    applied the Larson framework after citing Peabody as a case
    “discussing Larson and Dugan.” 
    Id. at 1032.
    We decline
    Judge Robinson’s invitation to create tension in our case law
    needlessly, see, e.g., Navajo Nation v. Dep’t of the Interior,
    
    876 F.3d 1144
    , 1168–72 (9th Cir. 2017), and instead
    conclude that our cases applying the Larson framework are
    consistent with section 702’s limited replacement of that
    framework as recognized in Peabody.
    Finally, because the Larson framework does not apply
    where the waiver of sovereign immunity under section 702
    does, we must determine whether that waiver applies here.
    The scope of the section 702 waiver is expansive—indeed,
    the waiver applies even where there is not “final agency
    action” under APA section 704, Navajo 
    Nation, 876 F.3d at 1171
    –72—but it is not unlimited. “[T]he second sentence of
    § 702 waives sovereign immunity broadly for all causes of
    action that meet its terms.” 
    Id. (emphasis added).
    And
    because “the sentence does refer to a claim against an
    ‘agency’ [or officer or employee thereof],” it “waives
    immunity only when the defendant falls within that
    category.” Trudeau v. Fed. Trade Comm’n, 
    456 F.3d 178
    ,
    187 (D.C. Cir. 2006).
    It is undisputed that Judge Robinson is not an “agency or
    officer or employee thereof” for purposes of section 702.
    APA section 701 expressly exempts courts-martial from the
    definition of “agency,” 5 U.S.C. § 701(b)(1)(F), and E.V.
    seeks relief from Judge Robinson in his official capacity as
    a military judge of a court-martial. Accordingly, section
    702’s waiver of sovereign immunity does not apply to Judge
    Robinson, and so the Larson framework has not been
    abrogated in the present context.
    E.V. V. ROBINSON                       21
    C.
    Judge Robinson raises a second threshold challenge to
    the application of the Larson framework, arguing that a suit
    is per se against the government for purposes of sovereign
    immunity where, as here, a federal official is named as a
    defendant only in his official capacity. We disagree.
    Judge Robinson’s argument runs directly contrary to
    Larson itself. The plaintiff in Larson sued the defendant
    “because of his official function as chief of the War Assets
    Administration” and “asked for an injunction against him in
    that 
    capacity.” 337 U.S. at 686
    (emphasis added). The
    Court was not concerned with the form of pleading. To the
    contrary, the Court explained that the suit would not have
    been barred by sovereign immunity had it alleged that the
    defendant acted unconstitutionally or ultra vires, because
    such acts “are considered individual and not sovereign
    actions.” 
    Id. at 689
    (emphasis added). Indeed, the very
    rationale for the framework set out in Larson is that a suit’s
    form should not be exalted over its substance; a suit is barred
    under the Larson framework, “not because it is a suit against
    an officer of the Government, but because it is, in substance,
    a suit against the Government over which the court, in the
    absence of consent, has no jurisdiction.” 
    Id. at 688
    (emphases added). In short, we would be turning Larson on
    its head if we were to hold that its framework does not apply
    simply because a defendant is named in his official capacity
    only.
    Judge Robinson’s argument also runs counter to our case
    law and that of our sister circuits. See, e.g., 
    Martinez, 573 F.2d at 555
    , 560 (applying the Larson framework to
    claims against “F. Ray Marshall, successor to John T.
    Dunlop, Secretary, Department of Labor”); Swan v. Clinton,
    
    100 F.3d 973
    , 981 (D.C. Cir. 1996) (same for claims against
    22                        E.V. V. ROBINSON
    “William J. Clinton, in his official capacity as President of
    the United States”); see also Dotson v. Griesa, 
    398 F.3d 156
    ,
    177 (2d Cir. 2005) (explaining that the Larson framework
    provides exceptions to the general rule that “sovereign
    immunity protects . . . officers when [they] act in their
    official capacities” (emphasis added)). 11 Our decision in
    
    Gilbert, 756 F.2d at 1458
    –49, relied upon by Judge
    Robinson, is not to the contrary. In Gilbert, as in the case it
    cites, Hutchinson v. United States, 
    677 F.2d 1322
    , 1327 (9th
    Cir. 1982), we concluded that suits against federal officials
    in their official capacities seeking damages were ipso facto
    against the government for purposes of sovereign immunity.
    Because the Larson framework does not apply in suits for
    damages, 
    Clark, 750 F.2d at 104
    ; Unimex, Inc. v. U.S. Dep’t
    of Hous. & Urban Dev., 
    594 F.2d 1060
    , 1062 (5th Cir. 1979),
    those decisions were correctly decided, and are inapposite to
    E.V.’s claims for injunctive relief. Accordingly, we reject
    Judge Robinson’s second threshold challenge to the
    application of the Larson framework, and proceed to apply
    the Larson framework to the claims in this case. 12
    11
    Congress also apparently understood the Larson framework to
    apply in official capacity suits. The APA section 702 waiver of
    sovereign immunity—which, as we have explained, replaced the Larson
    framework where the waiver applies—expressly covers any “claim that
    an agency or officer or employee thereof acted or failed to act in an
    official capacity or under color of legal authority.” 5 U.S.C. § 702
    (emphasis added).
    12
    At oral argument, Judge Robinson also contended (1) that E.V.
    waived her reliance on the Larson framework on appeal by not raising it
    before the district court; and (2) that footnote 11 of Larson bars this suit
    because the affirmative relief sought would impose an “intolerable
    burden on governmental functions,” Washington v. Udall, 
    417 F.2d 1310
    , 1311–12, 1317 (9th Cir. 1969) (interpreting Larson footnote 11);
    see also Vann v. Kempthorne, 
    534 F.3d 741
    , 750–55 (D.C. Cir. 2008)
    E.V. V. ROBINSON                            23
    D.
    We apply the Larson framework to E.V.’s non-
    constitutional and constitutional claims in turn.
    1.
    a.
    We begin by considering the scope of Larson’s “ultra
    vires” category for non-constitutional claims, as interpreted
    by our case law. E.V. argues that under 
    Mashiri, 724 F.3d at 1032
    , we should “merge” our consideration of Larson’s
    ultra vires category with the merits questions, which would
    effectively allow us to consider the merits of her claims as
    though they were not barred by sovereign immunity.
    Mashiri, however, is but the latest in a long line of cases in
    which we have applied the Larson framework, and thus we
    must consider our application of the Larson framework in
    our earlier cases as well. In doing so, we recognize that
    (discussing at length the “unfortunate footnote in the Larson opinion”).
    We reject both of these arguments. First, E.V. is “not limited to the
    precise arguments [she] made below,” Thompson v. Runnels, 
    705 F.3d 1089
    , 1098 (9th Cir. 2013) (internal quotation marks omitted), and it is
    sufficient for purposes of our review that she litigated the issue of
    sovereign immunity before the district court, United States v. Pallares-
    Galan, 
    359 F.3d 1088
    , 1095 (9th Cir. 2004) (“[I]t is claims that are
    deemed waived or forfeited, not arguments.”)). Second, whatever the
    scope of Larson footnote 11’s “intolerable burden” exception, it is not
    implicated by ordering relief that would simply require military judges
    to comply with the Military Rules of Evidence by not releasing
    privileged evidence or by destroying such evidence once it is released.
    Cf. Shermoen v. United States, 
    982 F.2d 1312
    , 1320 (9th Cir. 1992)
    (concluding that the affirmative relief sought would work an “intolerable
    burden on governmental functions” for purposes of Larson footnote 11
    because it would “prevent the absent [Indian] tribes from exercising
    sovereignty over the reservations allotted to them by Congress”).
    24                    E.V. V. ROBINSON
    Larson’s line between an ultra vires act and an erroneous
    exercise of delegated authority is notoriously elusive. See
    H.R. Rep. No. 94-1656, at 4–9; cf. City of Arlington v.
    F.C.C., 
    569 U.S. 290
    , 299 (2013). Therefore, we have
    eschewed any attempt to decide in general “at what point a
    violation of a statute or regulation is so inconsistent with the
    agent’s authority that he divests himself of sovereign
    immunity,” Yakima Tribal 
    Court, 806 F.2d at 860
    , and
    instead we have applied Larson’s ultra vires category on a
    case-by-case basis.
    Our early cases following the Supreme Court’s 1963
    decision in Dugan frequently concluded that claims alleged
    ultra vires action, and therefore were not “against the
    government” for purposes of sovereign immunity. In
    Washington v. Udall, for example, the State of Washington
    alleged that the Secretary of the Interior and his subordinates
    violated a contractual duty to deliver water to 160 acres of
    land based on an erroneous interpretation of a statute.
    
    417 F.2d 1310
    , 1311–12, 1317 (9th Cir. 1969). We
    concluded that the suit was one alleging ultra vires action
    under Larson because Congress did not “grant[] to the
    Secretary of the Interior, in his executing of contracts for the
    delivery of irrigation water, the discretionary authority to
    make incorrect as well as correct decisions concerning the
    necessity for the inclusion of 160-acre limitations in the
    contracts.” 
    Id. at 1316.
    We also concluded that the ultra
    vires exception was satisfied in Rockbridge v. Lincoln,
    where the plaintiffs alleged that the Secretary of the Interior
    and other officials erroneously failed to promulgate and
    enforce rules governing trading on Indian lands. 
    449 F.2d 567
    , 568, 572–73 (9th Cir. 1971). In general, other cases
    from this era similarly classified plaintiffs’ claims as falling
    within Larson’s ultra vires category. See 
    Martinez, 573 F.2d at 560
    ; 
    Starbuck, 556 F.2d at 457
    n.14; Andros v. Rupp,
    E.V. V. ROBINSON                        25
    
    433 F.2d 70
    , 72–74 (9th Cir. 1970). But see Turner v. Kings
    River Conservation Dist., 
    360 F.2d 184
    , 189–92 (9th Cir.
    1966).
    The 1980s, however, marked a shift in our case law
    addressing Larson’s ultra vires category. In Aminoil, the
    plaintiff argued that the Administrator of the Environmental
    Protection Agency acted ultra vires of his delegated
    authority by erroneously designating property as “wetlands”
    subject to the Clean Water 
    Act. 674 F.2d at 1233
    –34. We
    concluded that Larson “clearly rejected this argument”
    because, under Larson, a “simple mistake of fact or law does
    not necessarily mean that an officer of the government has
    exceeded the scope of his authority.” 
    Id. at 1234.
    Four years
    later, we relied on Aminoil and Pennhurst State School &
    Hospital v. Halderman, 
    465 U.S. 89
    , 101 n.11, 112 n.22
    (1984), to conclude that a federal project engineer “clearly
    . . . had authority to relocate irrigation canals to better serve”
    an Indian tribe, and so was immune from a suit alleging that
    he “violated [federal] statutes and regulations regarding
    owner consent to right-of-way changes” when doing so.
    Yakima Tribal 
    Court, 806 F.2d at 859
    –60. This trend
    continued in Tucson Airport Authority, where we held that
    the Secretaries of Defense and the Air Force were immune
    from a suit alleging that they violated a contractual duty to
    defend the plaintiff in civil actions; such a suit “allege[d], at
    most, a mistake of law” rather than ultra vires 
    action. 136 F.3d at 648
    (citing 
    Aminoil, 674 F.2d at 1234
    ); cf. also
    Ramon by Ramon v. Soto, 
    916 F.2d 1377
    , 1383 & n.7 (9th
    Cir. 1989) (relying on Yakima Tribal 
    Court, 806 F.2d at 859
    –60, and 
    Pennhurst, 465 U.S. at 101
    n.11, to conclude
    that plaintiffs’ claims were “against the United States” for
    purposes of the Equal Access to Justice Act).
    26                   E.V. V. ROBINSON
    Most recently, in Mashiri, we employed a different
    analysis that more closely resembled our earlier cases. The
    plaintiff there sought mandamus relief against the Secretary
    of Education, alleging that the Secretary violated a clear
    nondiscretionary duty under federal statutes to issue him a
    Stafford 
    Loan. 724 F.3d at 1030
    –31. Following the D.C.
    Circuit’s analysis in Washington Legal Foundation v. U.S.
    Sentencing Commission, 
    89 F.3d 897
    (D.C. Cir. 1996), we
    concluded that the ultra vires question under Larson
    “merge[d] with the question on the merits” because the
    “merits question[] w[as] directly relevant to the
    government’s asserted ‘duty to the plaintiff.’” 
    Id. at 1032
    (first alteration in original) (quoting Wash. Legal 
    Found., 89 F.3d at 901
    –02). We thus addressed the merits of the
    mandamus claim and concluded that the Secretary of
    Education did not owe the plaintiff a clear nondiscretionary
    duty to issue him a Stafford Loan. 
    Id. at 1032
    –33.
    Accordingly, the plaintiff could neither satisfy Larson’s
    ultra vires category nor prevail on the merits. 
    Id. b. We
    consider the foregoing precedents as guideposts, but
    in this case-specific area of the law, we are guided first and
    foremost by Larson itself. And, we conclude, Larson clearly
    dictates that E.V.’s non-constitutional claims allege “error[s]
    in the exercise of [delegated] power” rather than a “lack of
    delegated power.” 
    Larson, 337 U.S. at 695
    . In this regard,
    E.V.’s non-constitutional claims are more akin to those
    alleged in Aminoil and its progeny than the claims in
    Mashiri. Accordingly, E.V.’s non-constitutional claims are
    “against the government” for purposes of sovereign
    immunity, and thus are barred unless such immunity has
    been waived.
    E.V. V. ROBINSON                      27
    E.V.’s non-constitutional claims allege (1) that Judge
    Robinson’s decision to conduct an in camera review of her
    mental health records did not comply with the conditions set
    out in MRE 513(e)(3); (2) that Judge Robinson’s subsequent
    decision to release the records under a protective order did
    not comply with the conditions required by MRE 513(e)(4);
    and (3) that, by deciding to release the records, Judge
    Robinson failed to treat E.V. with fairness or respect for her
    dignity and privacy, in violation of UCMJ Article 6b.
    Although these claims may constitute “[s]erious challenges
    to the propriety” of Judge Robinson’s evidentiary rulings,
    
    Robinson, 200 F. Supp. 3d at 114
    , we conclude that Judge
    Robinson’s rulings were within the scope of his properly
    delegated authority under UCMJ Article 26, 10 U.S.C.
    § 826.
    Judge Robinson’s evidentiary rulings, no less than the
    challenged evidentiary rulings of district judges, were not
    “beyond his authority.” 
    Larson, 337 U.S. at 702
    . For
    purposes of sovereign immunity, Judge Robinson possesses
    the “discretionary authority to make incorrect as well as
    correct decisions concerning” the discovery of evidence in a
    court-martial. 
    Udall, 417 F.2d at 1316
    ; see also 
    Larson, 337 U.S. at 695
    (rejecting the argument that “an officer
    given the power to make decisions is only given the power
    to make correct decisions”). Just as “the jurisdiction of a
    court to decide a case does not disappear if its decision on
    the merits is wrong,” 
    Larson, 337 U.S. at 695
    , a military
    judge’s delegated authority does not disappear if his
    evidentiary decision on the merits is wrong. In sum, E.V.
    alleges “simple mistake[s] of fact or law,” Yakima Tribal
    
    Court, 806 F.2d at 859
    (quoting 
    Aminoil, 674 F.2d at 1234
    ),
    rather than actions in “conflict with the terms of” Judge
    Robinson’s delegated authority to resolve evidentiary issues
    when presiding over a court-martial, 
    Larson, 337 U.S. at 28
                      E.V. V. ROBINSON
    695; Yakima Tribal 
    Court, 806 F.2d at 859
    (quoting 
    Aminoil, 674 F.2d at 1234
    ). Were we to hold otherwise, we would be
    expanding Larson’s ultra vires exception to the point of
    abrogating the sovereign immunity defense for military
    judges entirely, in conflict with Larson and its progeny.
    Accordingly, E.V.’s non-constitutional claims are “against
    the government,” and thus are barred by sovereign immunity
    unless such immunity has been waived. We therefore turn
    to the question of waiver.
    c.
    E.V. argues that Congress waived the government’s
    sovereign immunity in federal court through UCMJ Article
    6b(e), which provides:
    If the victim of an offense under this chapter
    believes that . . . a court-martial ruling
    violates the rights of the victim afforded by[,
    inter alia, MRE 513 relating to the
    psychotherapist-patient privilege], the victim
    may petition the Court of Criminal Appeals
    for a writ of mandamus to require . . . the
    court-martial to comply with the section
    (article) or rule.
    10 U.S.C. § 806b(e). We conclude that Article 6b(e)
    provides only a limited waiver of sovereign immunity to
    allow victims to petition for mandamus relief in the military
    Court of Criminal Appeals, not a general waiver that applies
    in Article III courts.
    “The waiver of the United States’ sovereign immunity
    must be unequivocally expressed in the statutory text and
    will not be implied.” Dep’t of Treasury-I.R.S. v. Fed. Labor
    Relations Auth., 
    521 F.3d 1148
    , 1153 (9th Cir. 2008).
    E.V. V. ROBINSON                      29
    “Furthermore, ‘a waiver of the Government’s sovereign
    immunity will be strictly construed, in terms of its scope, in
    favor of the sovereign.’” 
    Id. (quoting Lane
    v. Pena, 
    518 U.S. 187
    , 192 (1996)). Here, the text of Article 6b(e) “strictly
    construed . . . in favor of the sovereign,” 
    id. (quoting Lane,
    518 U.S. at 192), does not mention, let alone “unequivocally
    express[],” a waiver of sovereign immunity in an Article III
    court, Dep’t of 
    Treasury-I.R.S., 521 F.3d at 1153
    ; see also,
    e.g., United States v. Park Place Assocs., Ltd., 
    563 F.3d 907
    ,
    927 (9th Cir. 2009) (explaining that the Tucker Act waives
    the government’s sovereign immunity in the Court of
    Federal Claims for claims arising under the statute in excess
    of $10,000, but does not also waive sovereign immunity
    where such claims are brought in federal district court).
    Thus, the government has not waived its sovereign immunity
    over E.V.’s non-constitutional claims in an Article III court.
    Because E.V.’s non-constitutional claims are against the
    government and the government has not waived its
    immunity over such claims, sovereign immunity bars them.
    2.
    Unlike her non-constitutional claims, E.V.’s two
    constitutional claims are not “against the government” for
    purposes of sovereign immunity. See 
    Larson, 337 U.S. at 689
    –90, 701–02; Yakima Tribal 
    Court, 806 F.2d at 859
    (contrasting Larson’s ultra vires category with the “per se
    divestiture of sovereign immunity” for alleged constitutional
    violations); see also Pollack v. Hogan, 
    703 F.3d 117
    , 121
    (D.C. Cir. 2012) (explaining that whether a plaintiff has
    asserted a cognizable constitutional right, “and whether any
    such right is applicable to [the] case, goes to the merits of
    [the plaintiff’s claim] and not to . . . sovereign immunity”).
    Nonetheless, we affirm the dismissal of these claims on other
    grounds. See 
    Wood, 678 F.3d at 1086
    .
    30                   E.V. V. ROBINSON
    a.
    E.V.’s first constitutional claim alleges that Judge
    Robinson violated the Fourth Amendment. The allegations
    in the complaint supporting this claim incorporate by
    reference the preceding allegations, recite the text of the
    Fourth Amendment, and allege that Judge Robinson
    “violated E.V.’s right under the Fourth Amendment of the
    Constitution to be secure in her person, house, papers, and
    effects, against unreasonable searches and seizures by the
    government.”       Assuming arguendo that E.V. has a
    cognizable Fourth Amendment interest in her mental health
    records, these conclusory allegations are insufficient to state
    a claim. See Ashcroft v. Iqbal, 
    556 U.S. 662
    , 678 (2009);
    Sanders v. Brown, 
    504 F.3d 903
    , 910 (9th Cir. 2007); cf.
    also, e.g., Teixeira v. Cnty. of Alameda, 
    873 F.3d 670
    , 678
    (9th Cir. 2017) (“Whatever the standard governing the
    Second Amendment protection accorded the acquisition of
    firearms, these vague allegations cannot possibly state a
    claim for relief under the Second Amendment.” (footnote
    omitted)). Thus, we affirm the dismissal of E.V.’s Fourth
    Amendment allegations because they fail to state a claim
    under Federal Rule of Civil Procedure 12(b)(6). See 
    Wood, 678 F.3d at 1086
    ; see also Morrison v. Nat’l Austl. Bank
    Ltd., 
    561 U.S. 247
    , 254 (2010) (addressing whether
    petitioners’ allegations stated a claim because “a remand
    would only require a new Rule 12(b)(6) label for the same
    Rule 12(b)(1) conclusion”)).
    b.
    E.V.’s second and final constitutional claim alleges that
    Judge Robinson “unlawfully usurped” Article III judicial
    power. In particular, the complaint points to Judge
    Robinson’s “declar[ation] that disclosure of E.V.’s
    psychotherapy records was ‘constitutionally required,’”
    E.V. V. ROBINSON                       31
    even though the “constitutionally required” exception in
    former MRE 513(d)(8) had been repealed by the National
    Defense Authorization Act for Fiscal Year 2015 (“NDAA
    2015”) and Executive Order No. 13,696. “By reinserting the
    ‘constitutionally required’ exception into Mil. R. Evid. 513,”
    E.V. alleges, “Judge Robinson implicitly declared NDAA
    2015 and Exec. Order 136696 unconstitutional,” thereby
    “usurp[ing] power that the Constitution explicitly reserves
    for Article III courts.”
    In light of our affirmance of the dismissal of E.V.’s other
    claims, E.V. is unable to establish the redressability element
    of standing through this claim alone. Even if Judge
    Robinson’s reliance on the “constitutionally required”
    exception was erroneous, he independently relied on the
    “crime-fraud” exception in MRE 513(d)(5) to order the
    release of E.V.’s mental health records. And, as we have
    explained, E.V.’s allegations challenging Judge Robinson’s
    application of the crime-fraud exception are barred by
    sovereign immunity. Because Judge Robinson’s “crime-
    fraud” ruling provides an independent basis for his decision
    to release E.V.’s mental health records and sovereign
    immunity bars any challenge to that ruling, there is no basis
    on which the district court could grant her any relief on this
    claim. See Get Outdoors II, LLC v. City of San Diego,
    
    506 F.3d 886
    , 895 (9th Cir. 2007). Accordingly, E.V. cannot
    establish standing to assert her second constitutional claim
    alone, and thus we affirm the dismissal of this claim for lack
    of subject matter jurisdiction.
    III.
    In sum, we hold as follows: (1) the 1976 amendment to
    section 702 of the APA did not abrogate the Larson
    framework in suits where section 702’s waiver of sovereign
    immunity does not apply; (2) under Larson, suits for specific
    32                   E.V. V. ROBINSON
    relief that are pleaded against federal officials in their
    official capacities are not per se barred by sovereign
    immunity; (3) E.V.’s non-constitutional claims are barred by
    sovereign immunity because they do not allege ultra vires
    action for purposes of the Larson framework, and the
    government has not waived its sovereign immunity over
    such claims; (4) E.V.’s Fourth Amendment allegations are
    not “against the government” under Larson and thus are not
    barred by sovereign immunity, but such allegations fail to
    state a claim under Rule 12(b)(6); and (5) E.V.’s
    constitutional claim challenging Judge Robinson’s reliance
    on the “constitutionally required” evidentiary exception is
    similarly not barred by sovereign immunity, but fails for lack
    of redressability.
    AFFIRMED.
    

Document Info

Docket Number: 16-16975

Citation Numbers: 906 F.3d 1082

Filed Date: 10/17/2018

Precedential Status: Precedential

Modified Date: 10/17/2018

Authorities (38)

Hawaii v. Gordon , 83 S. Ct. 1052 ( 1963 )

Harry Kenneth Clark v. Library of Congress , 750 F.2d 89 ( 1984 )

96-cal-daily-op-serv-274-96-daily-journal-dar-3190-96-daily-journal , 75 F.3d 449 ( 1996 )

The Presbyterian Church (u.s.a.) v. The United States of ... , 870 F.2d 518 ( 1989 )

Malone v. Bowdoin , 82 S. Ct. 980 ( 1962 )

United States v. Ruiz , 122 S. Ct. 2450 ( 2002 )

Exxon Mobil Corp. v. Allapattah Services, Inc. , 125 S. Ct. 2611 ( 2005 )

Wood v. City of San Diego , 678 F.3d 1075 ( 2012 )

Larson v. Domestic and Foreign Commerce Corp. , 69 S. Ct. 1457 ( 1949 )

State of Wyoming v. United States , 279 F.3d 1214 ( 2002 )

Dugan v. Rank , 83 S. Ct. 999 ( 1963 )

allen-dotson-v-the-honorable-thomas-p-griesa-the-honorable-kevin-t , 398 F.3d 156 ( 2005 )

aminoil-u-s-a-inc-a-delaware-corporation-and-the-signal-bolsa , 674 F.2d 1227 ( 1982 )

Ashcroft v. Iqbal , 129 S. Ct. 1937 ( 2009 )

United States v. Robert James Poole , 806 F.2d 853 ( 1986 )

Nick Andros v. Craig W. Rupp , 433 F.2d 70 ( 1970 )

Block v. North Dakota Ex Rel. Board of University & School ... , 103 S. Ct. 1811 ( 1983 )

Max E. Turner v. Kings River Conservation District , 360 F.2d 184 ( 1966 )

Nathan S. Smith v. Arthur R. Grimm and Jeannine Grimm , 534 F.2d 1346 ( 1976 )

Vann v. Kempthorne , 534 F.3d 741 ( 2008 )

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