E. v. v. Eugene Robinson, Jr.

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.