Amicus Curiae Brief — B. M., Petitioner v. United States, et al.

NO. 24-386

IN THE

Supreme Court of the United States

B.M.,

Petitioner,

v.

UNITED STATES OF AMERICA, ET AL.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the

Armed Forces

BRIEF OF R.R. AS AMICUS CURIAE IN SUPPORT OF

PETITIONER

LT COL SETH W. DILWORTH*

CAPT TIFFANY R. CAMPBELL

CAPT E. CHRISTIAN KOBRES, II

DEVON A. R. WELLS

Department of the Air Force

Victims’ Counsel Division

1500 W. Perimeter Rd., Ste. 1300

Joint Base Andrews, MD 20762

(202) 480-3424

seth.dilworth.1@us.af.mil

Counsel for Amicus Curiae

November 4, 2024

*Counsel of Record

i

TABLE OF CONTENTS

Page

Table of Contents ………………………………….….....i

Table of Appendices ……………………………..….....iii

Table of Cited Authorities ………………….….……...iv

Interest of Amicus Curiae ………………………….….1

Summary of the Argument ………………………..…..2

Procedural Background of in re R.R …………..…......3

Argument .……………...………………………………...5

A. Failures interpreting

the statute and promulgating

adequate guidance under

10 U.S.C. § 806b leave victims

without other judicial recourse....…..….….…..5

1. The CAAF disregarded the

statutory text and congressional

intent of 10 U.S.C. § 806b,

leaving a secondary effect

that unnecessarily strips away

victims’ rights….……………………..…...….6

2. The RCMs do not appropriately

incorporate 10 U.S.C. § 806b …………….12

ii

Table of Contents

Page

3. This Court should ensure the

President faithfully executes

10 U.S.C. § 806b ...…………….…….……..16

B. The military courts’ inconsistent

and unsupported applications of

a constitutional exception to Mil. R.

Evid. 513 impermissibly removes

victims’ statutory rights……....…………..…..18

1. The CAAF’s denial of standing failed

to resolve a split among the Military

Service courts, resulting in an absurd

result for R.R. and future victims ..……..18

2. The CAAF’s refusal to grant standing

impacts all types of victims of

sexual assault committed by

military members ………………...………..22

Conclusion ……………………….…………..………….24

iii

TABLE OF APPENDICES

Page

APPENDIX A – ORDER OF THE UNITED STATES

AIR FORCE COURT OF CRIMINAL APPEALS,

FILED MAY 7, 2024 ……………………..…..… App 1

APPENDIX B – OPINION BY THE UNITED

STATES AIR FORCE COURT OF CRIMINAL

APPEALS, DECIDED JULY 22, 2024 …..….. App 5

iv

TABLE OF CITED AUTHORITIES

Page

CASES

Auer v. Robins,

519 U.S. 452 (1997)………………………………….15

B.M. v. United States,

84 M.J. 314

(C.A.A.F. 2024) …......................................2-6, 17-20

Chevron U.S.A., Inc. v. NRDC,

467 U.S. 837 (1984)………………………………….15

Clinton v. Goldsmith,

526 U.S. 529, 534 (1999) ...................................7, 17

Edmond v. United States,

520 U.S. 651, 664 (1997) ……………..…………7, 22

Hasan v. Gross,

71 M.J. 416 (C.A.A.F. 2012) ……………..…………21

H.V.Z. v. United States,

No. 23-0250, 2024 CAAF LEXIS 410

(C.A.A.F. July 18, 2024) ........................................20

v

Cited Authorities

Page

In re R.R.,

2024 CCA LEXIS 286

(A.F.C.C.A. 7 May 2024) …………………….……….4

In re R.R. v. Anderson,

2024 CCA 293 (A.F. Ct. Crim. App. July 22,

2024) …………………………………..…….……...5, 19

Jaffee v. Redmond,

518 U.S. 1, 17 (1996) .........................................5, 21

J.M. v. Payton-O’Brien,

76 M.J. 782, 787 (N-M Ct. Crim. App. 2017) …5, 19

Kisor v. Wilkie,

588 U.S. 558, 590 (2019) .......................................15

Loper Bright Enters. v. Raimondo,

144 S. Ct. 2244 (2024) ………….......................15, 16

Middendorf v. Henry,

425 U.S. 25, 44 (1976) .............................................6

M.W. v. United States,

83 M.J. 361 (C.A.A.F. 2023)………………………..15

Ortiz v. United States,

585 U.S. 427, 441 (2018) .......................................17

vi

Cited Authorities

Page

Payne v. Tennessee,

501 U.S. 808, 827 (1991) …......................................9

TransUnion LLC v. Ramirez,

594 U.S. 413, 423 (2021) …………………………......22

United States v. Harrington,

83 M.J. 408, 418 (C.A.A.F. 2023) …......................17

United States v. Kahn,

5 F.4th 167, 174 (2d Cir. 2021) ….........................16

United States v. Sigrah,

82 M.J. 463 (C.A.A.F. 2022) …...........................14, 17

United States v. Tinsley,

81 M.J. 836, 849 (A. Ct. Crim. App. 2021) ...........19

United States v. Vogel Fertilizer Co.,

455 U.S. 16, 26. (1982). …......................................16

Weiss v. United States,

510 U.S. 163 (1994) …..........................................5, 6

STATUTES AND OTHER AUTHORITIES

10 U.S.C. § 802(a) …………………………………..….21

vii

Cited Authorities

Page

10 U.S.C. § 806b …………………………...1-2, 4-18, 20

10 U.S.C. § 836 …................................................13, 16

10 U.S.C. § 867 …………………………………..…….18

10 U.S.C. § 941 ……………………………………...7, 22

10 U.S.C. § 946 …………………………………….........7

10 U.S.C. § 1044e …....................................................8

18 U.S.C. § 3771 …....................................................13

150 CONG. REC. S10910

(daily ed. Oct. 9, 2004) ………………………………12

159 CONG. REC. S8148

(daily ed. Nov. 19, 2013) ……………………………..8

159 CONG. REC. S8151

(daily ed. Nov. 19, 2013) ………………………….8, 9

Mil. R. Evid. 513 ….......................3, 4, 7, 8, 11, 18, 20

viii

Cited Authorities

Page

A. Scalia, The Doctrine of Standing as an Essential

Element of the Separation of Powers, 17 Suffolk

U.L. Rev. 881, 882 (1983)) ……………...…….........11

Appendix 21, Analysis of Rules for Courts-Martial,

2016 M.C.M ............................................................14

Exec. Order No. 13669, 79 Fed. Reg. 34999

(Jun. 13, 2014) ………………………………..…......13

Exec. Order No. 13696, 80 Fed. Reg. 35783

(Jun. 17, 2015) ………………………..…………...…13

Exec. Order No. 13825, 83 Fed. Reg. 9889

(Mar. 1, 2018) ………………..…………..………......14

Exec. Order No. 14103, 88 Fed. Reg. 50535

(Jul. 28, 2023) …………………………….……..…...14

Judicial Review of The Manual for Courts-Martial,

160 Mil. L. Rev. 96, 122 (1999) ……………..…......17

National Defense Authorization Act for Fiscal

Year 2014, Pub. L. No. 113-66, 127 Stat. 672,

§ 1701(b) (26 Dec. 2013) …………...…….…….12, 13

1

Interest of Amicus Curiae 1

Pursuant to Supreme Court Rule 37, R.R. 2 respectfully submits this brief amicus curiae in support

of Petitioner Major Briana McFarland.

R.R. was sexually assaulted by Airman First Class

Brock Anderson, a United States Air Force member,

when she was 13 years old. R.R. was forced to disclose

hundreds of pages of her privileged mental health records to her abuser or have her case remain in

abatement as a direct result of the Court of Appeals

for the Armed Forces (CAAF) opinion the Petitioner

seeks to challenge in this case.

At trial, the military judge placed R.R. in a similar

position as the Petitioner, abating the proceedings after R.R. declined to waive her privilege. R.R. filed a

petition for a writ of mandamus under 10 U.S.C.

§ 806b(e), Uniform Code of Military Justice (UCMJ)

with the Air Force Court of Criminal Appeals

(AFCCA). 10 U.S.C. § 806b(e) (2024). R.R. specifically petitioned the AFCCA to protect her privileged

communications with a psychotherapist and lift the

abatement. However, citing to the CAAF’s opinion in

B.M. v. United States, 84 M.J. 314 (C.A.A.F. 2024)

(hereinafter B.M.), the AFCCA found that 1) R.R. did

1 No counsel for any party has authored this brief in whole

or in part, and no person other than amicus or their counsel have

made any monetary contribution intended to fund the preparation or submission of this brief. Pursuant to Rule 37.2, amicus

provided timely notice of intent to file an amicus curiae brief to

the parties’ counsel of record.

2 R.R. is a minor at the time of filing. Initials are used to protect

her privacy.

2

not have standing to challenge the abatement, and 2)

the violations of her statutory rights were not ripe due

to the abatement.

The CAAF’s B.M. opinion and the AFCCA’s ruling

against R.R. forced R.R. to “waive” her privilege to

pursue justice. Her seemingly coerced “waiver” then

gave her abuser access to hundreds of pages of her

mental health records before his ultimate conviction.

R.R. files this amicus curiae brief in support of Petitioner as another sexual assault victim whose rights

were adversely affected by the CAAF’s refusal to recognize a victim’s statutory standing, requiring her to

choose between the pursuit of justice or waiving a recognized privilege.

SUMMARY OF THE ARGUMENT

The CAAF’s decision in B.M. unnecessarily limited

access for victims to seek relief through the appellate

process directly contradicting the text and intent of

10 U.S.C. § 806b, causing foreseeable second order effects to the detriment of future crime victims. The

CAAF’s failure to adhere to the statute and the lack

of regulatory guidance implementing the statute have

denied victims’ the rights and voices expressly given

to them by Congress. The dearth of rules effectuating

victims’ rights and the CAAF’s inaction has led to disparate treatment of victims among the Military

Services, and consequently inconsistent results for

crime victims. Additionally, despite congressional action, victims whose offenders are tried in military

courts receive unequal treatment compared to victims

whose offenders are tried in federal district courts.

3

Ultimately, the CAAF’s opinion in B.M., combined

with regulatory inaction, led to adverse impacts on

the rights of R.R. and Major McFarland. Preventing

victims’ access to military courts through misplaced

findings that they lack standing—as the CAAF decided in B.M.—degrades the purpose of Mil. R. Evid.

513 and undermines any accountability for rulings

that facially abrogate victims’ statutory rights. Unfortunately, Major McFarland’s case is neither unique

nor an isolated set of circumstances in the military

justice system. The case of R.R.’s offender demonstrates how other victims are adversely impacted by

the CAAF’s decision in B.M. Granting certiorari in

this case is currently the singular avenue remaining

to guarantee victims their legally promised voice and

rights under these circumstances in the military justice system.

PROCEDURAL BACKGROUND OF IN RE R.R.

On 9 August 2024, a General Court-Martial convicted Airman First Class Anderson of sexual assault

of a child against R.R. Prior to trial, the Military

Judge conducted an in camera review of R.R.’s mental

health records and determined that portions of the

privileged records contained information constitutionally required for the Defense.

Like Major

McFarland, R.R. was informed by the Military Judge

that she must waive her privilege over the documents

or the trial against her abuser could not move forward. R.R., then 15 years old, refused to waive the

privilege, and the Military Judge abated the case.

Pursuant to 10 U.S.C. § 806b, R.R. filed a writ petition

to the AFCCA requesting the court vacate the abatement ruling and provide various other remedies

4

related to the erroneous release of her records. However, on 7 May 2024, 34 days after the CAAF issued

the B.M. ruling challenged by the Petitioner in this

case, the AFCCA dismissed R.R.’s petition for lack of

standing, relying exclusively on the B.M. ruling. See

In re R.R., 2024 CCA LEXIS 286 (A.F.C.C.A. 7 May

2024).

Without appellate relief, R.R. was forced to waive

her privilege to end the abatement. With the case no

longer in abatement, R.R. refiled her petition with the

AFCCA and sought a stay from the release of her records. Prior to the release of their opinion, the AFCCA

denied the stay request and R.R.’s mental health records were released to her abuser. In the renewed

petition, R.R. claimed the Military Judge erred: (1) in

determining R.R. waived her privilege under Mil. R.

Evid. 513 through a parental waiver; (2) in reviewing

Petitioner’s mental health records in camera; and (3)

in determining a “constitutional exception” existed

under Mil. R. Evid. 513 requiring production of some

of her records. The AFCCA’s findings on the first two

issues are inconsequential to this filing. However, as

to the third issue, the AFCCA determined since the

underlying judicial question remains unresolved by

superior courts, specifically unanswered by the CAAF

in B.M., trial court judicial decisions are not so clearly

erroneous to necessitate the issuance of a writ. See In

re R.R. v. Anderson, 2024 CCA 293 A.F. Ct. Crim.

App. July 22, 2024.

ARGUMENT

A. Failures interpreting the statute and promulgating adequate guidance under 10 U.S.C.

5

§ 806b leave victims without other judicial recourse.

The Hobson’s choice wherein military judges 3 present a crime-victim-witness the option of waiving a

codified common-law privilege or abating the prosecution of her abuser is wholly unique to the military

justice system and contravenes 10 U.S.C. § 806b. 4

Nowhere in 10 U.S.C. § 806b is the provision of victims’ rights conditioned on purported procedural due

process of an accused. 5 The Rules for Courts-Martial

(RCM) do not prescribe this course of action. Further,

abatement of proceedings is an absurd remedy in this

context, seemingly holding a victim hostage to choose

between an invasion of her private relationship with

See Weiss v. United States, 510 U.S. 163 (1994). “[Military

judges] are selected and certified as qualified by the Judge Advocate General of their branch of the Armed Forces. They do not

serve for fixed terms and may perform judicial duties only when

assigned to do so by the appropriate Judge Advocate General.”

Id. at 168.

4 This remedy emerged in J.M. v. Payton-O’Brien, 76 M.J. 782,

787 (N-M Ct. Crim. App. 2017) and was affirmed by the CAAF

in a concurrence in B.M. It has no anchor in law or in the Rules

for Courts-Martial and eviscerates the privilege promoting a

mentally healthy society and medical treatment for crime victims. Jaffee v. Redmond, 518 U.S. 1, 17 (1996) (“Making the

promise of confidentiality contingent upon a trial judge’s later

evaluation of the relative importance of the patient’s interest in

privacy and the evidentiary need for disclosure would eviscerate

the effectiveness of the privilege.”)

5 No military court, including the CAAF, has analyzed 10 U.S.C.

§ 806b to determine whether the asserted due process challenges

of an accused are “so extraordinarily weighty as to overcome the

balance struck by Congress.” Weiss, 510 U.S. 163, 177-78 (1994)

(quoting Middendorf v. Henry, 425 U.S. 25, 44 (1976)).

3

6

a psychotherapist—treatment often sought because of

an offender’s abuse—or justice. Abatements, like

those Major McFarland and R.R. faced, pause the proceedings, leaving victims and those accused of crimes

waiting indefinitely unless victims relent by waiving

a privilege. Additionally, the lack of appropriate implementation and recognition of victims’ rights

throughout the RCMs creates a void, to the detriment

of Major McFarland, R.R., and other military and civilian victims. This Court is singularly positioned to

provide relief.

1. The CAAF disregarded the statutory text

and congressional intent of 10 U.S.C. § 806b,

leaving a secondary effect that unnecessarily

strips away victims’ rights.

The CAAF in B.M. acknowledged the victim could

petition the Service appellate court but prioritized the

military judge’s abatement order over victim standing. 6 The CAAF looked to the statute through the

lens of what could happen under specific circumstances, but then tangentially focused on abatement.

Instead of focusing on the victim’s ability to challenge

the underlying court ruling, the court embraced

6 Congress created the CAAF by statute and expressly stated it

falls administratively to the Executive. 10 U.S.C. § 941. This

Court has reasoned the CAAF, likewise, falls to the Executive

for non-administrative purposes. Edmond v. United States, 520

U.S. 651, 664 (1997) (explaining the Executive branch oversight

of the CAAF.) Although 10 U.S.C. § 946 has since been amended,

the reasoning still stands as the CAAF recommends members to

sit on committees to review military justice.

7

abatement without considering the expressed language of 10 U.S.C. § 806b, congressional intent, or

even the practical effects of its opinion.

First, the text of the statute expressly states a victim may challenge a trial judge’s ruling based on Mil.

R. Evid. 513. 10 U.S.C. § 806b(e)(4). The text allows

a victim to “petition the Court of Criminal Appeals for

a writ of mandamus to require the…court-martial to

comply with the section or rule.” 10 U.S.C. §

806b(e)(1). Without the statute, victims lack the express authority granted by Congress to petition

appellate courts, a necessary jurisdictional provision. 7 Both Major McFarland and R.R. challenged the

underlying rationale of the abatement of the proceedings against their offenders as violations of the

psychotherapist-patient privilege under Mil. R. Evid.

513. By strict reading of the statute, the Service

courts had authority to review the victim petitions,

but they declined to do so.

Second, Congress intended victims to have more,

not fewer rights, with the implementation of 10

U.S.C. § 806b. Senator Lisa Murkowski had hoped

statutes like 10 U.S.C. § 806b and 10 U.S.C. § 1044e

would “. . . work to protect the rights of victims; to

ensure that justice and accountability are achieved in

an open and transparent fashion so that victims know

there is a system that works for them.” 159 CONG.

REC. S8148 (daily ed. Nov. 19, 2013) (statement of

Sen. Lisa Murkowski). Senator McCaskill believed

7 Courts-Martial and military appellate courts are only allowed

to exercise jurisdiction according to specific Congressional mandate. See Clinton v. Goldsmith, 526 U.S. 529, 534 (1999).

8

the provision of victims’ counsel would “. . . make our

military the most victim-friendly criminal justice system in the world. In no other criminal

justice system anywhere—civilian, military, United

States, our allies—does a victim get that kind of support.”

Id. at S8151 (statement of Sen. Claire

McCaskill) (emphasis added).

In terms of the military justice system, Senator

Kelly Ayotte said:

[t]he issue of ending sexual assaults in

our military is an issue for everyone.

This is an issue about justice. This is an

issue about fairness. This is about making sure that victims of crimes . . . get the

justice they deserve, the support they

deserve in our military, and that they

understand and appreciate that we want

them to have a climate in the military

where if they are a victim, they can come

forward and receive the support they

need and that they deserve.

Id. (statement of Sen. Kelly Ayotte). That right to

fairness is codified in 10 U.S.C. § 806b(a)(9) and affirmed in Payne v. Tennessee, 501 U.S. 808, 827 (1991)

(“. . .[]affirm[ing] the view expressed by Justice

Cardozo, ‘Justice, though due to the accused, is due to

the accuser also. The concept of fairness must not be

strained till it is narrowed to a filament. We are to

keep the balance true.’”) (internal citations omitted).

The CAAF’s opinion stripping away the right to

seek redress at an appellate court directly contradicts

the expressed intent to create the most victim-

9

friendly military in the world. 159 Cong. Rec. at

S8151 (statement of Sen. Claire McCaskill). Likewise, following Justice Cardozo’s reasoning, if justice

is due to the accuser, the accuser must have redress

when harmed at the trial level. Payne, 501 U.S. at

827. The foreclosure of relief for a violation of Major

McFarland’s privacy rights is a result clearly antithetical to Congressional desires to grant more rights

to victims. Dismissing the victim’s case, because it

did not comply with the self-imposed “cases and controversy requirement” of CAAF, simply based on an

abatement order by a military judge, not only harms

the victim of a crime, but also wholly ignores congressional intent.

Third and finally, under the CAAF’s opinion, a military judge can effectively prevent a victim from

petitioning an appellate court by abating proceedings.

R.R.’s petition at the AFCCA resulted in a denial after

the CAAF’s opinion in B.M, leaving R.R. with the

choice of either waiving a privilege or not having a day

in court. However, had the Military Judge waited to

abate the proceedings, R.R. could have challenged the

invasion of privacy without the legal barrier the

CAAF created. Effectively, by the CAAF’s decision,

military judges can now, intentionally or not, circumvent an appellate filing and a victim’s statutory rights

simply by abating the proceeding. Because, as the

AFCCA reasoned in R.R., the victim cannot appeal an

abatement decision, the victim no longer has those

rights granted by Congress. The victim is then left to

the mercy of the Government trial counsel to appeal a

proceeding, distorting the independent nature of victims’ rights and leaving the victim without the

10

fairness, dignity, and respect guaranteed by 10 U.S.C.

§ 806b(a)(9). 8

Even if it was determined that abatement

preempts statutory standing and jurisdiction, victims

may rely on traditional standing doctrine. R.R. petitioned AFCCA for relief pursuant to 10 U.S.C. § 806b,

believing the military judge erroneously violated her

privacy under Mil. R. Evid. 513. However, R.R. also

had standing based on injury caused by the military

judge and redressable by the Service appellate court.

The AFCCA disregarded both sources of standing,

preventing her and future victims from having any

voice in a complex military justice process. See A.

Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 Suffolk U.L.

Rev. 881, 882 (1983).

In sum, without the meaningful provision or implementation of 10 U.S.C. § 806b, victims have no

redress for privacy violations. Mil. R. Evid. 513 allows

a victim to be heard through counsel at the trial level.

If the military judge rules against the victim, the victim must either produce the privileged records or

petition the Service appellate court. However, a military judge can abate the proceedings before the

victim can petition the court, resulting in an impossible position for a victim, who has the right to petition

8 The right to confer with the government, as articulated in 10

U.S.C. § 806b(a)(5) shows the victims’ rights are independent

from prosecutorial decisions. If Congress meant for these rights

to be collaborative, the right to confer would not be expressly

outlined and the victims’ appellate procedures would align with

the Government’s.

11

a Service appellate court, but no standing to do so under the CAAF’s opinion.

The textual review of 10 U.S.C. § 806b, the congressional intent behind it, and the effects of the

CAAF’s opinion all require a different outcome than

what the CAAF decided. Under the CAAF’s ruling,

victims have no option but to waive privilege or forego

testifying to hold their abuser accountable. The

CAAF created an unsustainable construct. Accordingly, the CAAF’s ruling violates 10 U.S.C. § 806b,

preventing Major McFarland, R.R., and all future victims in the military justice system from seeking

appropriate redress in appellate courts when a military judge abates proceedings.

2. The RCMs do not appropriately incorporate 10 U.S.C. § 806b.

Congress expressly gave Military Service appellate

courts jurisdiction to review victims’ petitions for

writs of mandamus under specific circumstances.

Consistent with stated intent, Congress further directed the Secretary of Defense recommend changes

to the Manual for Courts-Martial (MCM) implementing the statute. National Defense Authorization Act

for Fiscal Year 2014, Pub. L. No. 113-66, 127 Stat.

672, § 1701(b) (26 Dec. 2013). However, even after

several years, such changes were never fully implemented, leaving a regulatory gap military judges

must fill without adequate guidance.

When Congress enacted 10 U.S.C. § 806b, the statute should have transformed the military justice

system. As previously noted, statements of Senator

12

Lisa Murkowski, Senator Claire McCaskill, and Senator Kelly Ayotte emphasize the intent to strengthen

the rights of victims in the military justice system. The statutory provision of victims’ rights in

military justice is not a statement of ideals but a clear

grant of rights to victims that shall be afforded to

them “not whittled down or marginalized.” 150 Cong.

Rec. S10910 (daily ed. Oct. 9, 2004) (statement of Sen.

Kyl). 9 In the 2014 National Defense Authorization

Act, Congress required implementation of 10 U.S.C. §

806b into the MCM within one year of its issuance

and mechanisms for affording those rights. Pub. L.

113–66, § 1701(b).

The changes to the MCM effectuating the endowment of rights under 10 U.S.C. § 806b have been

limited, and the restrained execution of 10 U.S.C.

§ 806b in rules prescribed by the President is not consistent with the Presidential authority in 10 U.S.C.

§ 836. The first Executive Order amending the MCM

following the insertion of 10 U.S.C. § 806b into the

UCMJ was only 28 pages long and does not mention

a single rule to account for the rights of victims to be

treated with fairness, respect for their dignity, and

with respect for their privacy. See Exec. Order No.

9 Although speaking of the national Crime Victims’ Rights Act

(CVRA), much of the same language was later adopted into the

MCM. 18 U.S.C. § 3771. National Defense Authorization Act

for Fiscal Year 2014, Pub. L. No. 113-66 § 1701(a)(1), 127 Stat.

672, 952 (2013) (hereinafter “2014 NDAA”). At the end of 2013,

Congress statutorily granted rights to victims of crimes in the

military justice system. The title of that section was “Extension

of Crime Victims’ Rights to Victims of Offenses Under the Uniform Code of Military Justice,” indicating Congress intended to

confer rights under the CVRA through Article 6b, UCMJ.

13

13669, 79 Fed. Reg. 34999 (Jun. 13, 2014). The second Executive Order after 10 U.S.C. § 806b in 2015

conservatively implemented more of the statutory

provisions. Exec. Order No. 13696, 80 Fed. Reg.

35783 (Jun. 17, 2015). To account for 10 U.S.C § 806b,

the 2015 Executive Order amended four (4) RCMs and

added RCM 1001A—there were approximately one

hundred twenty-six (126) RCMs at the time. See Appendix 21, Analysis of Rules for Courts-Martial, 2016

MCM. The privacy of crime victims is mentioned once

under the amended RCM 405, but there is not a single

mention in an amendment aimed at treating victims

with fairness or with respect for their dignity.

Id. The same pattern continues with the 2018 Executive Order amending the MCM and it has continued

to this day. See Exec. Order No. 13825, 83 Fed. Reg.

9889 (March 1, 2018); see also Exec. Order No. 14103,

88 Fed. Reg. 50535 (Jul. 28, 2023). Victims in the military justice system have the Congressionally granted

rights to be treated with fairness, with respect for

their dignity, and with the respect for their privacy—

but there are no rules effectively affording those

rights. 10

Additionally, the MCM incorporates no rules related to appellate review of issues noted in 10 U.S.C.

§ 806b(e)(4), including allowing victims to petition an

10 Rules in military courts carry weight similar to statute.

In

military justice, violations of the RCMs can form the basis to

overturn a finding or sentencing. See United States v. Sigrah,

82 M.J. 463 (C.A.A.F. 2022) (holding a violation of RCM 914 demands setting aside a finding of guilty). Likewise, rules are so

important in military courts they get de novo review and interpreted as statutes.

14

appellate court for a writ of mandamus for issues related to mental health privileges. 11 For crime victims

like Major McFarland and R.R., a failure to incorporate these Congressional provisions means a failure

to allow crime victims a voice in challenging rulings

that violate their privacy or stated privilege. While

“treated with fairness and with respect for the dignity

and privacy of the victim” is undefined in statute, fairness at a minimum includes a voice in the process.

In short, Congress acted intending to give victims

more rights in the military justice process and expressly did so, but failure to implement those rights

through executive regulations, leaves military judges

and Service appellate courts torn between statutory

and regulatory frameworks. 12 Had these regulations

11 Further, the CAAF’s previous interpretation of its jurisdiction

over cases prevents victims from petitioning the CAAF, leaving

crime victims with recourse only through certification from The

Judge Advocate General. M.W. v. United States, 83 M.J. 361

(C.A.A.F. 2023). A failure to achieve certification leaves victims

without any voice after a Service appellate court ruling. The

CAAF’s opinion precluding victims seeking relief directly to the

CAAF also contradicts the text of 10 U.S.C. § 806b(e)(3)(C),

which specifically says, “[r]eview of any decision of the Court of

Criminal Appeals on a petition for a writ of mandamus described

in this subsection shall have priority in the Court of Appeals for

the Armed Forces.”

12 If at one time the executive branch’s interpretation of 10

U.S.C. § 806b requirements may have been afforded Chevron

deference, this is no longer the case. See Loper Bright Enters. v.

Raimondo, 144 S. Ct. 2244, 2273 (2024) (“Chevron is overruled.”)

(citing Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984)). Neither is Auer deference appropriate here. Auer v. Robins, 519 U.S.

452 (1997). An executive agency may be afforded Auer deference

15

fully implemented 10 U.S.C. § 806b in a transformative way as both expressed and intended, military

judges would have greater clarity in how to afford victims their statutory rights. This Court should

consider Major McFarland’s petition to review the

tension between the statute, regulatory provisions,

and the CAAF’s ruling—and this Court is positioned

to resolve this dispute. See generally Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244 (2024) (asserting

the federal courts’ roles as the authority on the interpretation of statutes).

3. This Court should ensure the President

faithfully executes 10 U.S.C. § 806b.

10 U.S.C. § 836 provides the authority for the President to promulgate rules for courts-martial. It

states:

[p]retrial, trial, and post-trial procedures. . .for cases arising under this

chapter triable in courts-martial. . .may

be prescribed by the President by regulations which shall, so far as he

considers practicable, apply the principles of law and the rules of evidence

in interpreting any ambiguous regulations implementing 10

U.S.C. § 806b. See Kisor v. Wilkie, 588 U.S. 558, 590 (2019). But

to the extent its regulations contradict the plain meaning and

intent of the statute—as they do in this case—Auer is not applicable. See United States v. Kahn, 5 F.4th 167, 174 (2d Cir. 2021)

(citing United States v. Vogel Fertilizer Co., 455 U.S. 16, 26.

(1982)). The plain meaning of 10 U.S.C. § 806b, rather than the

executive’s interpretation of it, should govern the Court’s analysis.

16

generally recognized in the trial of criminal cases in the United States district

courts, but which may not. . . be contrary

to or inconsistent with this chapter [the

UCMJ].

As the Executive promulgates RCMs, the CAAF

presumes their validity. See Sigrah, supra note 10

(The CAAF presumes RCM 914 is valid without analyzing whether it is contrary or inconsistent with the

UCMJ); see also United States v. Harrington, 83 M.J.

408, 418 (C.A.A.F. 2023) (The CAAF presuming validity of RCM 1001(c) wherein analysis of Rules demand

de novo review. “We review a military judge's interpretation of RCM 1001 de novo.”). Moreover, the

jurisdictional enumerations of the CAAF limit

whether the court can invalidate an RCM. Congress

“. . . confined [the CAAF’s] jurisdiction to the review

of specified sentences imposed by courts-martial. . .”

See Clinton, supra note 7 at 534. Contrarily, in the

past, the military courts provided judicial review of

the MCM, but the current trend, as reflected in B.M.

and the unquestioning de novo review of RCMs suggest the military courts are generally unwilling to do

so. See Judicial Review of The Manual for CourtsMartial, 160 Mil. L. Rev. 96, 122 (1999).

This Court’s authority to review decisions of the

CAAF is decided and recently affirmed in Ortiz v.

United States. 585 U.S. 427, 441 (2018) (“[T]his

Court’s appellate jurisdiction, as Justice Story made

clear ages ago, covers more than the decisions of Article III courts.”). Victims with abusers tried in

military courts enjoy lesser, disparate, and unequal

rights as compared to civilian counterparts because

10 U.S.C. § 806b is not fully implemented. Although

17

the CAAF could have addressed this absence of regulatory guidance, the CAAF’s opinion in B.M.

highlights the apparent recalcitrance to provide victims meaningful rights in the military justice system

consistent with the statutory requirement to do so.

Accordingly, this Court provides the appropriate

meaningful avenue for redress.

B. The military courts’ inconsistent and unsupported applications of a constitutional

exception to Mil. R. Evid. 513 impermissibly removes victims’ statutory rights.

The CAAF’s refusal to answer the questions The

Judge Advocate General of the Navy certified under

10 U.S.C. § 867 is a failure by the military courts to

uniformly resolve whether Mil. R. Evid. 513 grants a

firm and statutorily defined privilege, as unambiguously intended by Congress and the President, or

whether the Constitution demands the privilege fall

to the whims of a subjective and undefined balancing

test. R.R. and Major McFarland suffer harm because

the CAAF refused to answer this question.

1. The CAAF’s denial of standing failed to resolve a split among the Military Service courts,

resulting in an absurd result for R.R. and future

victims.

The question presented to the CAAF in B.M. focused on a split among the Military Service courts,

but the CAAF failed to resolve the split. The Army

and Navy-Marine Courts each have opinions addressing what may be constitutionally required mental

18

health records. Specifically, the Army Court of Criminal Appeals (ACCA) has ruled that there is no

constitutional entitlement by an accused to privileged

mental health records of a victim. United States v.

Tinsley, 81 M.J. 836, 849 (A. Ct. Crim. App. 2021).

Meanwhile, the Navy-Marine Court of Criminal Appeals (NMCCA) has ruled the exact opposite finding

that when a Military Judge determines privileged records are sufficiently relevant to the case, an accused

is entitled to those records and the case must be

placed in abatement if the victim refuses to “waive”

the privilege, as occurred with the Petitioner in this

case. See J.M., supra note 4, at 787. Following the

CAAF’s opinion in B.M., the AFCCA followed suit, designing a third standard, issuing its opinion through

R.R.

After R.R.’s first petition was denied as a direct result of the CAAF’s decision in B.M., she “waived” her

privilege to move the court-martial forward. After the

military judge lifted the abatement, she filed a second

petition, once again seeking to challenge the military

judge’s ruling that the accused has a constitutional

right to her privileged records. The AFCCA once

again denied her appeal. In re R.R. v. Anderson, at 15

(A.F.C.C.A. July 22, 2024).

In addressing the constitutional question presented, the AFCCA stated,

[W]e note that recently our superior

court, the United States Court of Appeals for the Armed Forces, expressly

did not resolve the question ‘whether a

constitutional exception to the privilege

19

in [Mil. R. Evid.] 513 still exists.’ We

need not ourselves resolve this question

here. We cannot conclude that the military judge’s determination was ‘a

judicial usurpation of power’ or ‘characteristic of an erroneous practice which is

likely to recur’ where the underlying legal question remains unresolved. Id.

(citing B.M., 84 M.J. 314 (C.A.A.F.

2024).

In making this ruling, the AFCCA essentially determined a victim cannot challenge a military judge’s

determination of a constitutional entitlement given

the applicable standard of review. 13 As a result, individual military trial judges in the Air Force are free

to decide whether to enforce a victim’s rights based on

their own individual interpretation of the Constitution, with no avenue for relief available to victims.

The CAAF’s decision not to answer the question

presented created a split among the Military Service

13 Despite the codification of 10 U.S.C § 806b(a) rights provision

mirroring the C.V.R.A., the CAAF ruled victims with cases tried

by courts-martial seeking a writ of mandamus to enforce their

rights must demonstrate clear and indisputable error by the military judge; whereas, victims with cases in the federal court

system enjoy ordinary standards of appellate review. H.V.Z. v.

United States, No. 23-0250, 2024 CAAF LEXIS 410 (C.A.A.F.

July 18, 2024). The standard of review in military justice for

issuance of writs of mandamus on behalf of victims seeking enforcement of their statutory rights is the same standard adopted

in the case where convicted mass-murderer Nidal Hasan sought

disqualification of a military judge. Id. at *7 citing Hasan v.

Gross, 71 M.J. 416 (C.A.A.F. 2012).

20

courts with the absurd result that three different Services’ members accused of a crime will have access to

three entirely different sets of “constitutional rights”

depending on their Service branch. The split creates

an un-uniformed response in a system governed by a

uniformed legal code. 14 This split produces an unacceptable result for victims and accused.

The purpose of the psychotherapist-patient privilege is to provide a patient with the ability to engage

in open and honest discussion with their mental

health provider to receive effective mental health

care. See Jaffee, supra note 4. Sexual assault victims

have a strong need for mental health treatment, and

they have valid reasons to value their privacy and

keep their private and intimate thoughts out of the

hands of their own abusers. Today, under the CAAF’s

opinion, even a victim represented by competent

counsel and given the benefit of a comprehensive explanation of the privilege by their own therapist

cannot predict whether sharing private thoughts and

memories will be protected communications.

2. The CAAF’s refusal to grant standing impacts all types of victims of sexual assault

committed by military members.

14 Members of the armed forces are subject to the

Uniformed

Code of Military Justice, which was enacted by statute.

10 U.S.C. § 802(a).

21

The population affected by the CAAF’s ruling is

vast. 15 Victims of sexual assault who encounter the

military justice system goes beyond our service members. The UCMJ extends to crimes committed by

service members against any person, anywhere in the

world. Victims affected by this ruling extend to men

and women, military members and civilians, U.S. citizens and foreign nationals, adults and children.

Major McFarland, a National Guard member, and

R.R., a civilian minor with no connection to the military, were both stuck in a system of rules determined

by the status of their abusers. Regardless of a victims’

status, the CAAF’s ruling applies.

R.R.’s case is a single example showing how far the

CAAF’s opinion in this case reaches. R.R. is a minor

from a civilian family. At 13 years old, her only connection to the United States Armed Forces was that

she was assaulted by a member of the Air Force.

R.R.’s only other exposure to the military has been

through the military justice process where she experienced a different form of violation. R.R. never

consented to the release of her mental health records

15 The CAAF’s adoption of justiciability standards—specifically

the standing doctrine—necessary to ensure Article III courts

only hear cases and controversies as required by the Constitution is a peculiar jurisprudential path.

The CAAF is

unequivocally not an Article III court by statute, and closing victim access to the CAAF in the name of “standing” under these

standards is clear and obvious error. 10 U.S.C. § 941 (establishing the CAAF under Article I and placing the CAAF for

administrative purposes in the Department of Defense); See Edmond, supra note 6 at 664 (1997) (explaining the CAAF also falls

to the Executive Branch for non-administrative purposes). See

also TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021).

22

to the Government. R.R. had a moment of empowerment that she could protect her sensitive records

when she filed the writ petition. However, after the

ruling and subsequent dismissal, R.R. had to witness

her abuser get access to her mental health records

and hold the knowledge that it would be used to hurt

her. Even today, with her assailant in confinement,

R.R. must live with the fact that he was able to use

our court system to violate her one last time. Major

McFarland, a military member, and R.R., a civilian

minor with no connection to the military, have cases

that are not uncommon for victims in the military justice system.

This court’s review of Major McFarland’s petition

can resolve issues faced by R.R. and other crime victims. Congress expressly gave victims voice in a

military justice process. By no fault of theirs, these

victims find themselves in a military court governed

by different rules than federal courts and different

rules among the Military Services, hindering their

rights to challenge violations of their basic privacy interests. Because of the CAAF’s opinion, a military

judge’s decision to abate a proceeding effectively circumvents a victim’s petition to an appellate court,

violating the text and intent of the statute, creating a

practical removal of victims’ rights at the trial level.

R.R.’s case demonstrates Major McFarland is not the

only victim to face the choice of waiving a privilege or

preventing a trial, and R.R.’s case reflects the secondary effect of the CAAF’s opinion. Therefore, the Court

should grant review of Petitioner’s case to resolve the

inconsistencies of regulatory guidance, the CAAF’s

opinion, and the statute.

23

Conclusion

The Victims have a statutory voice in military

justice. The Court should grant review of Major

McFarland’s petition.

Respectfully submitted,

LT COL SETH W. DILWORTH*

CAPT TIFFANY R. CAMPBELL

CAPT E. CHRISTIAN KOBRES, II

DEVON A. R. WELLS

Department of the Air Force

Victims’ Counsel Division

1500 W. Perimeter Rd., Ste. 1300

Joint Base Andrews, MD 20762

(202) 480-3424

seth.dilworth.1@us.af.mil

*Counsel of Record

Counsel for Amicus Curiae

November 4, 2024

App. 1

Appendix A

In re RR

Petitioner

)

)

)

)

)

)

Brock T. ANDERSON )

Airman First Class (E-3))

U.S. Air Force

)

Real Party in Interest )

Misc. Dkt.

No. 2024-02

ORDER

Special Panel

On 14 March 2024, this court received a

petition for extraordinary relief pursuant to

Article 6b, UCMJ, 10 U.S.C. § 806b, in the

nature of a writ of mandamus, in the abovestyled case. Specifically, Petitioner requests

we vacate the trial judge’s abatement ruling

of 23 February 2024, disqualify the military

judge, disqualify the trial counsel “who

examined [RR’s] privileged records,” and seal

all patient records reviewed to date. Along

with the petition, Petitioner filed a Motion to

File Attachments to the Petition for Relief

under Article 6b, UCMJ, Under Seal. The

court docketed the petition on 15 March 2024.

On 21 March 2024, the Government

responded to Petitioner’s Motion to File

Attachments Under Seal and stated the

Government did not oppose this motion but

requested the court order Petitioner to serve

App. 2

Appendix A

said attachments on the Government. The

attachments provided by Petitioner to the

court appeared to be materials that may have

been filed during the trial proceedings. “To

enable our review of the petition and to verify

what materials were marked by the military

judge and entered into the record at trial,” we

issued an order on 28 March 2024 denying the

motion and ordering “the preparation of a

verbatim transcript of all trial proceedings

and inclusion of all appellate exhibits,” 1 to be

provided to the court not later than 1 May

2024. This court also granted leave for the

Government and the Real Party in Interest

each to file an answer to the petition for a writ

of mandamus not later than 20 days after the

certified record of trial is served on the court.

2

On 9 April 2024, the Real Party in Interest

moved for leave to file a motion to dismiss,

citing the recently published case In re B.M.

v. United States and Bailey, No. 23-0233,

1 In that order, we noted that pursuant to Mil. R. Evid.

513(e)(6) (Manual for Courts- Martial, United States

(2024 ed.)) any portions of the transcript relating to

involving Mil. R. Evid. 513 pleadings and rulings

entered into the record of trial, must be sealed.

2 See JT. CT. CRIM. APP. R. 19(f)(1).

App. 3

Appendix A

M.J.

, 2024 CAAF LEXIS 201 (C.A.A.F. 3

Apr. 2024).

On 19 April 2024, Petitioner moved for leave

to file out of time opposition to the Real Party

in Interest’s motion to dismiss. This same

day, Petitioner filed a Motion to Attach email

communications in support of its opposition.

Both motions were unopposed, and the court

granted Petitioner’s motions.

In his motion, the Real Party in Interest

asserts the United States Court of Appeals for

the Armed Forces (CAAF) in In re B.M. held

“[a] named victim lacks standing to challenge

the abatement order of a trial court before”

our court and the CAAF. Additionally, he

asserts we should conclude, as the CAAF did

in In re B.M., that “the rest of the victim’s

requests for relief [are] either not ripe for

decision or moot”

At this time, Petitioner and the Real Party

in Interest agree that during the courtmartial of the Real Party in Interest, the trial

judge conducted an in- camera review of RR’s

medical records. The trial judge offered RR,

through her counsel, the opportunity to waive

or not waive her privilege over a portion of her

mental health records. Due to RR’s decision

App. 4

Appendix A

not to waive,

proceedings.

the

trial

judge

abated

We agree with the Real Party in Interest

that In re B.M. is controlling. Out of judicial

economy, we choose to rule on the motion to

dismiss although this court has not received

the certified record of trial to date.

Specifically, we find(1) Petitioner does not

have standing in this court to challenge the

abatement, see In re B.M., 2024 CAAF LEXIS

201, at *11, and (2) due to the abatement, the

remaining issues in the petition are not ripe.

See id. at *14.

Accordingly, it is by the court on this 7th day

of May, 2024,

ORDERED:

The Real Party in Interest’s Motion for Leave

to File Motion to Dismiss is

GRANTED.

The Real Party in Interest’s Motion to

Dismiss is GRANTED. This order does not

preclude further filings should the abatement

be lifted.

FOR THE COURT

CAROL K. JOYCE

Clerk of the Court

App. 5

Appendix B

Misc. Dkt. No. 2024-08

In re RR

Petitioner

Brock T. ANDERSON

Airman First Class (E-3), U.S. Air Force

Real Party in Interest

Petition for Extraordinary Relief in the

Nature of a Writ of Mandamus

Decided 22 July 2024

Military Judge: Bradley J. Palmer.

GCM convened at: Altus Air Force Base,

Oklahoma.

App. 6

Appendix B

For Petitioner: Captain Tiffany R. Campbell,

USAF; Captain Erick C. Kobres II, USAF;

Devon A.R. Wells, Esquire 1

Before RICHARDSON, DOUGLAS, and

WARREN, Appellate Military Judges.

Judge DOUGLAS delivered the opinion of

the court, in which Senior Judge

RICHARDSON and Judge WARREN joined.

This is an unpublished opinion and, as

such, does not serve as precedent under

AFCCA Rule of Practice and Procedure

30.4.

DOUGLAS, Judge:

On 9 June 2024, pursuant to Rule 19 of the Joint

Rules of Appellate Procedure for Courts of

Criminal Appeals, Petitioner submitted to this

1 There were no other parties to this petition because

no briefs were to be filed “unless ordered by the court;”

and the court did not order any briefs to be filed.

App. 7

Appendix B

court a petition for extraordinary relief in the

form of a writ of mandamus in the pending

general court-martial of United States v. Airman

First Class Brock T. Anderson (the Real Party in

Interest). The Real Party in Interest is charged

with one specification of sexual assault of a child

who had not attained the age of 16 years, and

three specifications of sexual abuse of a child who

had not attained the age of 16 years, in violation

of Article 120b, Uniform Code of Military Jus- tice

(UCMJ), 10 U.S.C. § 920b. 2

Petitioner, RR, is a minor and the named victim

in all specifications. Petitioner requests we issue

a writ vacating the trial judge’s order to discover

her privileged mental health records; order all released mental health records sealed and removed

from the possession of trial counsel and trial

defense counsel; disqualify all counsel who have

reviewed these records; and order the procedural

requirements of Mil. R. Evid. 513 be followed. We

find issuance of a writ is not appropriate.

2 All references to punitive articles of the UCMJ are to the

Manual for Courts-Martial, United States (2019 ed.) (2019

MCM). All other references to the UCMJ, Military Rules of

Evidence (Mil. R. Evid.), and Rules for Courts-Martial are to

the Manual for Courts- Martial, United States (2024 ed.).

App. 8

Appendix B

I. BACKGROUND

The Real Party in Interest is alleged to

have committed the charged offenses on or

about 10 May 2022. While investigating the

allegations, the Air Force Office of Special

Investigations (OSI) requested authorization

from Petitioner’s biological mother, SH, to

obtain Petitioner’s records maintained in a

civilian facility, Coastal Harbor Treatment

Center. On 11 July 2022, SH signed a form

authorizing the “disclosure of health

information”

concerning

RR with a

handwritten entry specifying “any and all

information regarding the rape with [the Real

Party in Interest].” According to Petitioner,

the facility released 359 pages to OSI, ten of

which were included in their report of

investigation (ROI). Trial counsel later

provided the ROI to trial defense counsel.

On 7 September 2023, the trial judge

appointed SH as legal representative for

Petitioner, pursuant to Article 6b(c), UCMJ,

10 U.S.C. § 806b(c). The judge’s order

specifically stated SH, as Petitioner’s legal

guardian, “may assume the rights of the

victim” because RR is “under 18 years of age.”

On 8 September 2023, trial defense counsel

App. 9

Appendix B

submitted a supplementary discovery

request, asking the Government to produce

mental health records at additional facilities

mentioned in the ROI. On 18 September 2023,

trial counsel declined production of these

additional

records,

citing

Petitioner’s

psychotherapist-patient privilege under Mil.

R. Evid. 513.

On 24 October 2023, Petitioner’s victims’

counsel entered a notice of appearance. On 30

October 2023, trial defense counsel asked

victims’ counsel if Petitioner would

voluntarily release the mental health records

located at the other facilities. Trial defense

counsel specifically stated they were looking

for information discoverable under United

States v. Mellette, 82 M.J. 374 (C.A.A.F. 2022),

as well as evidence of child abuse or neglect.

On 31 October 2023, the Government

informed victims’ counsel of the mental health

records OSI possessed. On 1 November 2023,

victims’ counsel invoked privilege over these

records, pursuant to Mil. R. Evid. 513, and

requested the records be sealed and

maintained in the trial judge’s custody

pending a hearing on the matter.

App. 10

Appendix B

On 2 November 2023, the trial judge

ordered the trial counsel to “place any records

potentially involving matter privileged . . . in

a separate envelope and for them not to be

reviewed or disclosed until a hearing could be

held.”

On 4 December 2023, the trial judge held

a closed Article 39(a), UCMJ, 10 U.S.C. §

839(a), hearing. On 21 December 2023, the

trial judge issued a “notice of a partial ruling.”

He explained by email that he was denying

the defense request for production of mental

health records outside the Government’s possession. He also ruled Petitioner had waived

her privilege “through her parent and

guardian” for the mental health records

possessed by the Government concerning “the

offenses alleged in this case.”

The trial judge also determined an in

camera review of the records “was necessary

to determine which documents” in the

Government’s possession “were covered by

the waiver.” He performed this review and, in

his email, the trial judge described four

categories of records found as follows:

1. Documents

subject to the

waiver that will be provided to

the Defense.

App. 11

Appendix B

2. Documents not subject to the

waiver but that I have determined fall under the Due Process

protections discussed in Brady

v. Maryland and Giglio v. United

States and their progeny

(constitutionally required). 3

3. Documents that are privileged

but not subject to the waiver or

constitutionally required. These

will not be provided to the

Defense.

4. Documents

that are not

privileged (including documents

exempted from the privilege

under M[e]llette) and that will

be pro- vided to the Defense.

In the same email, the trial judge asked

victims’ counsel to inform him and the parties

whether Petitioner intended to waive

privilege for the documents in category 2,

supra.

On 3 January 2024, the trial judge

supplemented his previous partial ruling via

3 Giglio v. United States, 405 U.S. 150 (1972); Brady v.

Maryland, 373 U.S. 83 (1963).

App. 12

Appendix B

another email. He acknowledged “[t]here is no

binding case law regarding whether a parent

can waive a privilege on behalf of a child.” He

further stated, however,

The general rule in other

jurisdictions appears to be that a

parent can assert or waive a

privilege on a child’s behalf when

doing so would be in the child’s

best interest but not when the

parent and child are adversarial

or when the parent is asserting

or waiving the privilege for their

own interests.

The trial judge cited Garcia v. Guiles, 254 So.

3d 637, 640 (Fla. Dist. Ct. App. 2018), which

he summarized as “holding that [a] parent

could not waive [the] privilege on [a] child’s

behalf

because

of

their

adversarial

relationship but[a] guardian ad litem could

[waive the privilege] because she was acting in

[the] child’s interest.” The trial judge

reasoned SH had properly waived Petitioner’s

privilege, pursuant to Mil. R. Evid. 510,

“based on what [she] believed was in

App. 13

Appendix B

[Petitioner’s] best interests

[Petitioner’s] allegations.” 4

to

support

Also on 3 January 2024, victims’ counsel

informed the trial judge and par- ties by email

that her client was “willing to waive privileges

on the documents except” four pages. On 12

January 2024, the trial counsel filed a

supplemental brief informing the trial judge

“it is the Government’s position it is now

obligated under [R.C.M.] 703, Brady and

Giglio to disclose” certain records in its

possession where the privilege no longer

applied because the trial judge had ruled

Petitioner had waived it. On the same date,

the Real Party in Interest moved to abate the

proceedings “unless and until the alleged

victim, RR, waives her . . . privilege and

allows disclosure of the previously identified

four documents.”

On 23 February 2024, the trial judge

supplemented his findings of fact and

conclusions of law, and ordered the

proceedings abated until such time as

Petitioner waived her privilege for the four

4 We do not have before us how the trial judge came to this

conclusion.

App. 14

Appendix B

remaining pages of mental health records he

deemed constitutionally required.

On 14 March 2024, Petitioner filed an initial

petition with this court for extraordinary

relief, pursuant to Article 6b, UCMJ, 10

U.S.C. § 806b. Specifically, Petitioner

requested we issue a writ of mandamus

requiring the trial judge to vacate his

abatement ruling of 23 February 2024,

disqualify the trial judge and the trial counsel

“who examined [Petitioner’s] privileged

records,” and seal all patient records reviewed

to date. The court docketed the petition on 15

March 2024, and granted leave for the

Government and the Real Party in Interest

each to file an answer to Petitioner’s petition

for a writ of mandamus. On 9 April 2024, the

Real Party in Interest moved for leave to file

a motion to dismiss Petitioner’s petition of 14

March 2024.

On 7 May 2024, this court granted the

Real Party in Interest’s motion to dismiss the

petition, in accordance with In re B.M., No.

23-2033, 2024 CAAF LEXIS 201, at *10-11

(C.A.A.F. Apr. 3, 2024), which held a named

App. 15

Appendix B

victim does not have standing to challenge an

abatement order in an accused’s case because such an order is not a court-martial

ruling that affects the victim’s rights under

Mil. R. Evid. 513 or Article 6b, UCMJ. 5

On 17 May 2024, Petitioner waived her

privilege and agreed to disclosure and

production to trial counsel and trial defense

counsel of the four pages of mental health

records identified by the trial judge as

constitutionally

required.

Petitioner

explained that she waived her privilege

regarding these pages be- cause the trial

judge ruled the court-martial could not

continue absent her waiver and she could not

attain relief from our court while proceedings

were in abatement.

The trial judge then lifted the abatement

and rescheduled the trial for 8 July 2024.

Petitioner is now before this court a second

5 As a result of our ruling of the Real Party in Interest’s

motion to dismiss, we did not decide the substantive

issues raised in Petitioner’s 14 March 2024 petition, but

stated, “This order does not preclude further filings

should the abatement be lifted.” See In re RR, Misc.

Dkt. No. 2024-02, 2024 CCA LEXIS 286, at * 3 (A.F. Ct.

Crim. Appl. 7 May 2024).

App. 16

Appendix B

time with her petition of 9 June 2024, in

which she has the standing she lacked when

she filed her previous request for a writ of

mandamus. 6

II. LAW

The Uniform Code of Military Justice affords

certain rights to victims of offenses, including

to be treated with “fairness” and “respect for”

their “dignity and privacy.” Article 6b(a)(9), 10

U.S.C. § 806b(a)(9). Such victims “do not have

the authority to challenge every ruling by a

military judge” at a court-martial “with which

they disagree; but they may assert [certain]

rights enumerated in Article 6b, UCMJ, in the

Manual for Courts-Martial, and under other

applicable laws.” In re KK,

M.J. , Misc.

Dkt. No. 2022-13, 2023 CCA LEXIS 31, at *13

(A.F. Ct. Crim. App. 24 Jan. 2023).

Accordingly, if a victim believes a courtmartial ruling violates any of these rights,

“the victim may petition the Court of

Criminal Appeals for a writ of mandamus to

6 Contemporaneously included in this petition, Petitioner filed

a motion to stay the proceedings and to stay the disclosure of

additional medical records pages for which she recently waived

privilege; on 13 June 2024, we denied Petitioner’s motion to

stay proceedings.

App. 17

Appendix B

require the . . . court- martial to comply[.]”

Article 6b(e)(1), UCMJ, 10 U.S.C. §

806b(e)(1). “If granted, such a writ would

require compliance with Article 6b, UCMJ.”

In re KK, 2023 CCA LEXIS 31, at *6.

More broadly, the purpose of a writ of

mandamus is to “confine an inferior court to a

lawful exercise of its prescribed jurisdiction or

to compel it to exercise its authority when it is

its duty to do so.” Roche v. Evaporated Milk

Association, 319 U.S. 21, 26 (1943) (citations

omitted). A writ of mandamus “is a ‘drastic

and extraordinary’ remedy ‘reserved for really

extraordinary causes.’” EV v. United States,

75 M.J. 331, 332 (C.A.A.F. 2016) (quoting

Cheney v. United

States Dist. Court for D.C., 542 U.S. 367, 380

(2004)).

“A military judge’s decision warranting

reversal via a writ of mandamus ‘must

amount to more than even gross error; it must

amount to a judicial usurpation of power or be

characteristic of an erroneous practice which

is likely to recur.’” In re KK, 2023 CCA LEXIS

31, at *6 (omission in original) (quoting

United States v. Labella, 15 M.J. 228, 229

(C.M.A. 1983) (per curiam)).

App. 18

Appendix B

To prevail on a petition for a writ of

mandamus, a petitioner “must show that: (1)

there is no other adequate means to attain

relief; (2) the right to issu- ance of the writ is

clear and indisputable; and (3) the issuance of

the writ is appropriate under the

circumstances.” Hasan v. Gross, 71 M.J. 416,

418 (C.A.A.F. 2012) (per curiam) (citing

Cheney, 542 U.S. at 380–81); see also In re KK,

2023 CCA LEXIS 31, at *10 (rejecting abuse

of discretion as the standard to determine

mandamus relief and endorsing the

traditional mandamus stand- ard in Hasan).

As a matter of discovery, “[a]fter service of charges,

upon request of the defense, the Government shall

permit the defense to inspect any . . . papers,

documents, [or] data . . . or copies of portions of the

items, if the item is within the possession, custody, or

control of military authorities and . . . the item is

relevant

to

defense

preparation[.]”

R.C.M.

701(a)(2)(A). Nevertheless, “Upon a sufficient

showing, [a] military judge may at any time order that

. . . discovery or inspection be denied, restricted, or

deferred, or make such other order as is appropriate.

R.C.M. 701(g)(2). This rule generally

allows a military judge to “review any

material in camera.” Id. If the military judge

does so, they “shall seal any materials

App. 19

Appendix B

examined in camera and not disclosed and

may seal other materials as appropriate.” Id.

Moreover, the Manual for Courts-Martial

recognizes certain privileges that may limit

the availability of evidence at courts-martial.

In particular, Mil. R. Evid. 513(a) provides:

A patient has a privilege to

refuse to disclose and to prevent

any other person from disclosing

a confidential communication

made between the patient and a

psychotherapist or an assistant

to the psychotherapist, in a case

arising under the [UCMJ], if

such communication was made

for the purpose of facilitating

diagno- sis or treatment of the

patient’s mental or emotional

condition.

In light of this privilege, Mil. R. Evid. 513(e)(2)

requires a military judge to

conduct a hearing before

ordering the production or

admission of “evidence of a

patient’s

records

or

communication,” defined as

App. 20

Appendix B

“testimony of a psychotherapist,

or assistant to the same, or

patient records that pertain to

communications by a patient to

a psychotherapist, or assistant

to the same, for the purposes of

diagnosis or treatment of the

patient’s mental or emotional

condition.”

Mellette, 82 M.J. at 379 (quoting Mil. R. Evid.

513(b)(5)). “The patient must be afforded a

reasonable opportunity to attend the hearing

and be heard.” Mil. R. Evid. 513(e)(2). A

“confidential communication made between

the patient and a psychotherapist or an

assistant” as referred to in Mil. R. Evid.

513(a) “does not naturally include other

evidence, such as routine medical records,

that

do

not

memorialize

actual

communications between the patient and the

psycho- therapist.” Mellette, 82 M.J. at 378.

“[D]iagnoses and treatments contained

within medical records [including mental

health records] are not themselves uniformly

privileged under [Mil. R. Evid.] 513.” Id. at

375.

App. 21

Appendix B

Paragraph (a) of Mil. R. Evid. 510(a),

Waiver of privilege by voluntary dis- closure,

provides:

A person upon whom these rules

confer a privilege against disclosure of a confidential matter

or communication waives the

privilege if the person or the

person’s

predecessor

while

holder

of

the

privilege

voluntarily discloses or consents

to disclosure of any significant

part

of

the

matter

or

communication

under

such

circumstances that it would be

inappropriate to allow the claim

of privilege. This rule does not

apply if the disclosure is itself a

privileged communication.

III. ANALYSIS

Petitioner alleges several errors in

violation of her rights under Article 6b,

UCMJ, specifically her right to be treated

with fairness and with respect for her dignity

and privacy. She claims the trial judge erred:

(1) in determining Petitioner waived her

App. 22

Appendix B

privilege under Mil. R. Evid. 513; (2) in

reviewing Petitioner’s mental health records

in camera; and (3) in determining a

“constitutional exception” existed under Mil.

R. Evid. 513 requiring discovery of some of

these records.

We have carefully considered Petitioner’s

claims. We find Petitioner has failed to show

the right to issuance of the writ is clear and

indisputable and the issuance of the writ is

appropriate under the circumstances. See

Hasan, 71 M.J. at 418.

First, Petitioner has provided no binding

authority for us to conclude the trial judge’s

application of Mil. R. Evid. 510 to determine

whether Petitioner’s waiver of the privilege

under Mil. R. Evid. 513 was erroneous such

that it is clear and indisputable that a writ

should issue. Petitioner argues Mil. R. Evid.

513 should be interpreted to mean “a parent

has the ability to assert but not waive their

child’s privilege.” Petitioner acknowledges,

however, “a jurisdictional split” on the issue

of whether a parent may waive their minor

child’s privilege. Petitioner cites cases from

App. 23

Appendix B

other jurisdictions where the court found a

parent could waive the privilege on behalf of

the child when there is no adversarial

relationship between parent and child, or

when the parent is not waiving the privilege

for their own interests. See, e.g., Garcia, 254

So. 3d at 640. Petitioner has not provided any

support for us to conclude Petitioner’s mother

was not acting in furtherance of Petitioner’s

best interests, was adversarial to Petitioner’s

interests, or was acting in pursuit of her own

personal interests or that of someone else.

Second, Petitioner argues the trial judge

erred by reviewing Petitioner’s mental health

records in camera. In this case, Petitioner’s

mother authorized the voluntary disclosure of

certain records held by a civilian treatment

facility about her daughter’s treatment, and

transfer to military law enforcement in

furtherance of their investigation into the

alleged crimes against the Real Party in

Interest. If this is proper waiver, the in

camera review procedures provided in Mil. R.

Evid. 513(e)(3) do not apply to Petitioner’s

records because such procedures do not apply

to records for which the privilege was waived.

Petitioner does not provide authority for us to

App. 24

Appendix B

conclude the trial judge’s in cam- era review of

these mental health records was erroneous

such that it is clear and indisputable that a

writ should issue. We agree Mil. R. Evid. 513

has certain procedural requirements that

must be met for an in camera review, but an

in camera review is also authorized under

other rules as well R.C.M. 701(g)(2). On this

record we cannot determine the trial judge’s

conclusions were erroneous.

Third, we reject Petitioner’s argument that

a writ should issue because the trial judge’s

determination of a constitutional exception to

Mil. R. Evid. 513 violates Petitioner’s right to

privacy and fair proceedings. We agree the

Congress has legislative authority over

military justice and we acknowledge the

language of Mil. R. Evid. 513 has changed

over time. However, we note that recently our

superior court, the United States Court of

Appeals for the Armed Forces, expressly did

not resolve the question “whether a

constitutional exception to the privilege in

[Mil. R. Evid.] 513 still exists.” In re B.M.,

2024 CAAF LEXIS 201, at *17. We need not

ourselves resolve this question here. We cannot conclude that the military judge’s

determination was “a judicial usurpation of

App. 25

Appendix B

power” or “characteristic of an erroneous

practice which is likely to recur” where the

underlying

legal

question

remains

unresolved. In re KK, 2023 CCA LEXIS 31, at

*6.

Petitioner has not demonstrated the right

to issuance of the writ she seeks is clear and

indisputable, and she has therefore failed to

show the appropriate- ness of the requested

relief.

IV. CONCLUSION

Petitioner’s petition for extraordinary

relief in the nature of a writ of mandamus

under Article 6b, UCMJ, 10 U.S.C. § 806b,

dated 9 June 2024, is DENIED.

FOR THE COURT

CAROL K. JOYCE

Clerk of the Court