EV v. United States

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
EV
Appellant
v.
UNITED STATES
Appellee
and
David A. MARTINEZ, Sergeant
United States Marine Corps, Real Party in Interest
No. 16-0398
Crim. App. No. 201600057
Argued May 11, 2016—Decided June 21, 2016
Military Judge: E. H. Robinson Jr.
For Appellant: Major Chad T. Evans, USAF (argued);
Lieutenant Colonel Deanna Daly, USAF.
For Appellee: Lieutenant Commander Justin C. Henderson,
JAGC, USN (argued); Colonel Mark K. Jamison, USMC,
Captain Matthew M. Harris, USMC, and Brian K. Keller,
Esq. (on brief).
For Real Party in Interest: Lieutenant Doug Ottenwess,
JAGC, USN (argued).
Amicus Curiae for Appellant: Peter Coote, Esq. (on brief)—
Protect Our Defenders.
Judge STUCKY delivered the opinion of the Court, in
which Chief Judge ERDMANN, and Judges RYAN,
OHLSON, and SPARKS, joined.
_______________
Judge STUCKY delivered the opinion of the Court.
The writ of mandamus “is a ‘drastic and extraordinary’
remedy ‘reserved for really extraordinary causes.’” Cheney v.
United States Dist. Court for D.C., 542 U.S. 367, 380 (2004)
(quoting Ex parte Fahey, 332 U.S. 258, 259–60 (1947)). It is
this extraordinary remedy that EV (Appellant) seeks in the
case at hand under the auspices of Article 6b(e)(1), Uniform
Code of Military Justice (UCMJ), 10 U.S.C. § 806b(e)(1)
(2012). However, in light of the plain language of that article
EV v. United States and Martinez, No. 16-0398/MC
Opinion of the Court
and the absence of any other express or implied congres-
sional intent to bestow authority upon us, we find that we
lack jurisdiction to entertain the petition. As such, we do not
reach the merits of EV’s contentions and dismiss her peti-
tion for lack of jurisdiction.
I. Background
This case stems from a sexual interaction between EV
and Sergeant (Sgt) Martinez (Real Party in Interest), after
which she sought mental health treatment as a result of the
event.
On June 2, 2015, eight specifications were preferred
against Sgt Martinez under Articles 80, 107, and 120,
UCMJ, 10 U.S.C. §§ 880, 907, 920 (2012). These charges
were referred to trial on September 3, 2015.
In a supplemental request for discovery, Sgt Martinez
requested notice as to whether EV sought or was seeking
mental health treatment as a result of the allegations put
forth in this case and “production of any and all such evi-
dence.” The Government responded by stating that “Mental
Health records do exist, however, Maj[or] Evans, Special
Victim’s Counsel, and the government believe[] these docu-
ments to be irrelevant and privileged documents.”
Sgt Martinez then filed a motion to compel discovery of
the requested documentation, and the issue was argued be-
fore the military judge in a closed Article 39(a), UCMJ,
10 U.S.C. § 839(a) (2012), session. The military judge denied
this motion on December 30, 2015.
However, all parties conceded that EV had waived her
privilege with regard to two pages of mental health records
her husband had previously submitted to Air Force officials
in support of a humanitarian transfer request. As such,
these were turned over to the military judge for in camera
review, and then over to Sgt Martinez.
On January 8, 2016, in light of the information revealed
in these two pages, Sgt Martinez filed a motion for reconsid-
eration of the military judge’s initial decision denying dis-
covery of all of EV’s mental health records. A hearing on this
motion was held on January 13, 2016, and the military judge
issued an order the same day directing the Government to
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EV v. United States and Martinez, No. 16-0398/MC
Opinion of the Court
turn over all of EV’s mental health records for in camera re-
view.
Following the in camera review, the military judge or-
dered select portions of the records turned over to Sgt Mar-
tinez under a protective order. Subsequently, EV petitioned
the United States Navy-Marine Corps Court of Criminal
Appeals (CCA) for a writ of mandamus to correct the mili-
tary judge’s alleged abuse of discretion in ordering the re-
lease of her mental health records. The CCA found, however,
that EV’s “right to an issuance of a writ is not ‘clear and in-
disputable’” and denied the petition. EV v. Robinson and
Martinez, No. NMCCA 201600057 (N-M. Ct. Crim. App. Feb.
25, 2016) (order).
EV now seeks identical relief from this Court.
II. Discussion
In 2013, Congress first gave statutory authorization to
programs establishing certain limited rights to alleged vic-
tims of offenses under Article 6b, UCMJ. See Pub. L. No.
113-66 § 1701(a)(1), 127 Stat. 672, 952 (2013). Such pro-
grams had previously existed only under regulation. The
next year, Congress amended this statute to include an en-
forcement mechanism, which authorized an alleged victim
who believed that a ruling of a court-martial violated her
rights under Military Rule of Evidence 513 or 412 to seek
mandamus in the relevant Court of Criminal Appeals:
(e) ENFORCEMENT BY COURT OF CRIMINAL
APPEALS.—(1) If the victim of an offense under
this chapter believes that a court-martial ruling vi-
olates the victim’s rights afforded by a Military
Rule of Evidence specified in paragraph (2), the vic-
tim may petition the Court of Criminal Appeals for
a writ of mandamus to require the court-martial to
comply with the Military Rule of Evidence.
(2) Paragraph (1) applies with respect to the
protections afforded by the following:
(A) Military Rule of Evidence 513, relating to
the psychotherapist-patient privilege.
(B) Military Rule of Evidence 412, relating to
the admission of evidence regarding a victim’s
sexual background.
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EV v. United States and Martinez, No. 16-0398/MC
Opinion of the Court
Pub. L. No. 113-291, § 535, 128 Stat. 3292, 3368 (2014)
(amending Article 6b, UCMJ). As a federal court of appeals
inferior to the Supreme Court, our jurisdiction and, indeed,
our existence are wholly dependent upon statutes enacted by
Congress (in our case, in pursuance of its Article I power to
make rules for the governance of the land and naval forces).
EV seeks a writ of mandamus to correct an alleged abuse
of discretion by the military judge relating to certain mental
health records. The CCA, to whom the petition was first di-
rected, denied relief. The question is whether we now have
jurisdiction to decide this petition on the merits.
This Court clearly has authority, in a proper case, to
grant mandamus and other extraordinary or prerogative
writs under the All Writs Act, 28 U.S.C. § 1651 (2012). See
Clinton v. Goldsmith, 526 U.S. 529, 534 n.7 (1999) (citing
Noyd v. Bond, 395 U.S. 683, 695 (1969)); United States v.
Frischholz, 16 C.M.A. 150, 36 C.M.R. 306, 307–08 (1966).
However, it is axiomatic that the All Writs Act is not an in-
dependent source of jurisdiction. It does not expand this
Court’s jurisdiction, but only operates “in aid of” our existing
statutory jurisdiction. Goldsmith, 526 U.S. at 534–35 (cita-
tion omitted) (internal quotation marks omitted); see Syn-
genta Crop Protection, Inc. v. Henson, 537 U.S. 28, 31–32
(2002); Hendrix v. Warden, 23 C.M.A. 227, 228, 49 C.M.R.
146, 147 (1974). We therefore must look to Article 6b,
UCMJ, itself for any grant of jurisdiction.
We review questions of jurisdiction de novo. United
States v. Kuemmerle, 67 M.J. 141, 143 (C.A.A.F. 2009); Unit-
ed States v. Harmon, 63 M.J. 98, 101 (C.A.A.F. 2006). In
construing statutes, jurisdictional and otherwise, we apply
the accepted rules of statutory construction. One is that an
unambiguous statute is to be enforced according to its terms:
[W]hen the statute’s language is plain, the sole
function of the courts—at least where the disposi-
tion required by the text is not absurd—is to en-
force it according to its terms.
Hartford Underwriters Ins. Co. v. Union Planters Bank,
N. A., 530 U.S. 1, 6 (2000) (citation omitted) (internal quota-
tion marks omitted; see also United States v. Watson,
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EV v. United States and Martinez, No. 16-0398/MC
Opinion of the Court
71 M.J. 54, 57 (C.A.A.F. 2012); United States v. Dickenson,
6 C.M.A. 438, 20 C.M.R. 154, 165–66 (1955).
When examined, the statute is quite straightforward. It
is a clear and unambiguous grant of limited jurisdiction to
the Courts of Criminal Appeals to consider petitions by al-
leged victims for mandamus as set out therein. There is no
mention whatsoever of this Court. Congress having legislat-
ed in this area and bestowed certain third-party rights on
alleged victims, we must be guided by the choices Congress
has made. Congress certainly could have provided for fur-
ther judicial review in this novel situation. It did not.1
It may be argued that our decision in LRM v. Kastenberg,
72 M.J. 364 (C.A.A.F. 2013), provides a basis for jurisdiction
in this case. It does not. LRM was a case certified to us by
the Judge Advocate General of the Air Force, and therefore
stood on a wholly different jurisdictional basis from the pre-
sent case. Id. at 366. Moreover, LRM was decided before
Congress had legislated in this area, either through the en-
actment of the substantive victims’ rights provisions of Arti-
cle 6b or through the later enactment of the remedial provi-
sion at issue here. The LRM decision was rendered without
the benefit of Congress’s direction in the matter. Congress
having now legislated in the area, we are bound by the
choices it made. As Chief Justice Chase wrote almost 150
years ago:
[J]udicial duty is not less fitly performed by declin-
ing ungranted jurisdiction than in exercising firmly
that which the Constitution and the laws confer.
Ex parte McCardle, 74 U.S. (7 Wall.) 506, 515 (1869).
III. Judgment
The petition is dismissed for lack of jurisdiction. The stay
of proceedings ordered on April 22, 2016, is hereby dissolved.
1 While the statute is unambiguous and resort to legislative
history is therefore normally precluded, there is also nothing in
the sparse history of the statute that evinces any contrary intent.
5