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.