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

Background

E.V., a civilian alleged sexual-assault victim, had brief mental-health records (a February 2015 Naval Hospital discharge summary) used to support a military reassignment and later sought psychotherapy; Sgt. David Martinez was court-martialed for the alleged assault.
During the court-martial presided over by Military Judge Lt. Col. Eugene H. Robinson, Jr., Martinez sought production of E.V.’s mental-health records; Judge Robinson conducted in camera review and ordered redacted portions released under a protective order, invoking the crime-fraud exception and a purported “constitutionally required” exception.
E.V. sought mandamus review in the military appellate courts (NMCCA denied relief; CAAF dismissed for lack of jurisdiction) and then sued Judge Robinson in federal district court in his official capacity seeking injunctive relief (including destruction of records).
The district court dismissed on sovereign-immunity grounds; E.V. appealed. After dismissal, Judge Robinson released the redacted records; E.V. sought an order requiring destruction of records.
The Ninth Circuit applied Larson/Dugan framework to determine whether claims against Judge Robinson (official capacity) are “against the government” for sovereign-immunity purposes, and whether any waiver (e.g., under UCMJ Article 6b(e) or APA §702) applies.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether sovereign immunity bars E.V.’s non-constitutional claims	E.V.: suit seeks specific injunctive relief against Judge Robinson’s procedural/evidentiary violations and is not effectively against the U.S.	Robinson: official-capacity suit is a suit against the U.S., so sovereign immunity bars it	Held: Non-constitutional claims are "against the government" under Larson (they allege erroneous exercise of delegated authority) and are barred absent waiver
Whether 1976 APA §702 abrogated Larson exceptions here	E.V.: §702 waives sovereign immunity broadly for official-capacity equitable relief	Robinson: §702 abrogated Larson entirely, so Larson not available	Held: §702 replaced Larson only where §702 applies; it does not apply to courts-martial judges (not an "agency"), so Larson remains controlling here
Whether naming an official in his official capacity is per se a suit against the government	E.V.: official-capacity pleading can fall within Larson exceptions when alleging ultra vires or constitutional violations	Robinson: official-capacity naming automatically makes the suit against the government	Held: Larson controls substance over form; official-capacity suit is not per se barred—Larson exceptions still apply to official-capacity injunctive suits
Constitutional claims (Fourth Amendment and Article III usurpation): sufficiency and redressability	E.V.: disclosure violated Fourth Amendment and Judge Robinson implicitly declared a statute unconstitutional (usurped Article III power)	Robinson: constitutional claims either fail on the merits or are unredressable because other rulings (crime-fraud) independently support the disclosure	Held: Constitutional claims are not barred by sovereign immunity but were dismissed — Fourth Amendment claim for failure to plead sufficient facts; Article III usurpation claim dismissed for lack of redressability (independent crime-fraud basis and sovereign-immunity bar to challenging it)

Key Cases Cited

Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (U.S. 1949) (framework for when suits against federal officers are considered suits against the sovereign; ultra vires and constitutional exceptions)
Dugan v. Rank, 372 U.S. 609 (U.S. 1963) (formulation of Larson exceptions: officer acted beyond statutory power or acted pursuant to constitutionally void authority)
Malone v. Bowdoin, 369 U.S. 643 (U.S. 1962) (reaffirming Larson exceptions)
Mashiri v. Dep’t of Educ., 724 F.3d 1028 (9th Cir. 2013) (application of Larson/D.C. Circuit approach where ultra vires and merits may merge)
E.E.O.C. v. Peabody West Coal Co., 610 F.3d 1070 (9th Cir. 2010) (discussing effect of APA §702 on Larson framework)
United States v. Yakima Tribal Court, 806 F.2d 853 (9th Cir. 1986) (applying Larson in federal sovereign-immunity context)
Gilbert v. DaGrossa, 756 F.2d 1455 (9th Cir. 1985) (official-capacity damages suits treated as suits against the government for sovereign immunity; distinguished here as damages vs. equitable relief)
Schlesinger v. Councilman, 420 U.S. 738 (U.S. 1975) (equitable abstention principles re: intervening in court-martial proceedings)