united states military sees the confidential and privilege mental health records of an american civilian and turn those records over to a third party the man accused of sexually assaulting our sovereign immunity cannot be use to deny her the ability to challenge the unlawful and unconstitutional action by the u s military dougan the supreme court set out that constitutional claims where an officer exceeds either that the statute and acts and implements a statute  unconstitutional manner or if that concept if the statute itself is unconstitutional that sovereign immunity will not bar there was claims making constitutional allegations are not barred by sovereign immunity you only have one constitutional claim correct yes your honor the fourth amendment the fourth amendment what are the other claims the other claims are violation of the statute that excludes and removes the constitutionally required exception in the rule wouldn't this judge act exercising his discretion in whether or not to allow the turnover of this information no he's not exercising discretion if he goes directly against always he doing there was a motion made in front of him to turn  fine but that's one of the leading larson do good cases in our circuit can i ask you about the fourth of and claim also the so in your complaint because we're here on a motion to dismiss the  count for quotes the constitution and then says that robinson violated her fourth amendment rights but doesn't provide any  allegations that would indicate how the fourth amendment even applies in this situation so where what is the it's i didn't see it in the complaint but what is the plausible allegations that there was a penitent privilege under oregon law because they violated that privilege it was put it was a violated her reasonable case his reasonable expectation of privacy and enjoying the organ in prison system from listening in on conversations between a priest and the  so there's a evidentiary issue but i'm trying to understand what the fourth amendment violation is it is they seized her records on reasonably it must be unreasonable to be a violation of the fourth amendment case says that for medical records because i know the supreme court specifically held open the question as to whether in the massive nelson as to whether there was any and at that time supreme court still had not address whether the attorney client privilege must ever give way to some to a defendant's confrontation rights so there's no clearly established law that would give a military defendant a constitutional right that would supersede the right but you have to make it a plausible allegation of a fourth a what concerns me in this case is let's say it's not a matter of terry judge but it's a district judge and the federal court system article three judge and you say that that your client constitutional rights are have been infringed how would you go about doing that same way if you have authority that the potential witness can sue the federal district judge for some business records and the business objected to the subpoena and the court considered it and ordered that the subpoena be in force the district court ordered that the subpoena be in force and the supreme court reversed it saying that there's a fourth amendment right to privacy and that search was on reasonable but versus economy too as well that's a supreme court case that likewise fin out all of those cases are cases where challenges that challenge of a district court judge doing that this should be you know a lot more clear because and we saw in those cases they have had a district court an article three judge determine the rights of the privilege holder in this case no article three judge has done that military judges are basically disciplinary ans they are not protected they are not article three judges and they are enforcing the good order and discipline of the forces that's their purpose they are not the supreme court once said that court martials as an institution or singularly inept in dealing with an nie subtleties of constitutional law they are not trained and don't have the ability and should not be deciding the rights of people who are not under who are not being before the court martial to be disciplined when you have a third party and you need their evidence that third party has rights and the the military has the ability to the military has the ability to  the military's ability to decide what those rights are initially but it's subject to meaningful review by the ok you're over your time thank you i'll give you a minute for about a moment that good morning i'm a please the court greg broaddrick from the united states attorney's office and i represent lieutenant colonel robinson who's been seated in his official capacity as a military judge it's our position sovereign immunity boyer's this action  for a number of reasons first we don't think larson is a good law anymore i'm happy to talk about that if you'd like to we of course still seems to think it's good luck i'm not sure that i'm not going to write we have we have a number of cases we can't just dismiss circuit so how does it apply here i don't think it applies here for several reasons first we think that they that they waive this argument by not raising it below but leaving that aside they've she'd judge robinson in his official capacity only that's in paragraph eight of their complaint and larson doogan malone all of those cases hawaii versus gordon all place a strong emphasis on the fact that if you want to s an officer for acting beyond his powers or acting unconstitutionally you're entitled to and i'm quoting from six ninety five of larson specific relief against the officer as an individual same language in page  seven oh i'm sorry page six twenty two action can be made on the basis of a suit for specific relief against the officer as an individual in that language of law to send itself said that the mere fact that his official capacity as his scribe to the agents against him really facade is not conclusive that he's being sued as for a sovereign so so the complaint sought specific relief against administrators and his official capacity so lar hard yes that's right you're has and you're usually resulting form over substance as they say well i don't think that's right the whole idea behind this fiction to a degree still exist the whole idea behind this fiction is you're not doing the government's business anymore you're liable to see it as an individual much like you know for damages action underpins for example when the officer behaves unconstitutionally sure he's acting under color of law but he's no longer acting in his official capacity and that's what subjects in pursuit and or reading is it's the same here but i have i have additional reasons i've heard you go back and look at that language from larsen and hawaii because there's a very heavy stress on the on the individuality of that so butt but i've got additional reasons also they they seek official relief here and so what larsen says is the crucial question when you're trying to determine is this really a suit against the sovereign or isn't it the crucial question is does the relief run against the sovereign and the relief here at least as we're position now can only run against the sovereign that there might have been an argument at the outset of this before the the documents were turned over that you could just say to judge roberts and stop don't do anything more that we believe is unconstitutional but that's over now this the documents have been handed over the court martials happened and so all that's left is in order to say go destroy these records that's not an order to judge robinson that's an orders of the government but by the way and i'm sure this was evident in our briefing but those documents are going to be destroyed in march of next year one way or the other in the under under the military regulations so him that's carrying it out and it won't be an order that's really directed to him and larsen says that's the crucial question the same thing in the m and a will be course it's a case that you brought up earlier judge occluded that cited in it cited in cases that we cited  that cases look you're seeking relief against the administrator of e p a in that case to stop her from enforcing the clean water act that's official the sovereign immunity applies and i'd also point this court  decided in two thousand and sixteen and ruckus elitist says a similar thing if you're going to seek relief against an officer as an individual you can't seek relief that requires an officer she behaves in her official capacity and we do know about the order to produce documents in a discovery dispute in any kind of cord creates an independent claim under the fourth amendment the cases he cited to do you need seo from the supreme court in the holmes opinion he referenced here earlier there's a direct review of court orders in forcing a grand jury subpoena so somebody got a subpoena and they didn't comply they got an order to comply and the supreme court said no the subpoena there goes beyond what's reasonable under the fourth amendment so we're not going to enforce it that's quite apart from a claim an independent claim and i shared judge by those concerns when i looked at this is i don't if this works i don't see the limiting principle that would stop say a cadet at the naval academy in annapolis maryland  or somebody assaulted by that kid out from filing a lawsuit in baltimore against some member of the military or if he didn't like the order that he got from the judge in baltimore to file a case against the judge in some neighboring jurisdiction is not really a limiting principle here and that's the that's the difficulty with their argument but again the crux of our of our argument aside from for from the idea that larson do not good law any more than the crux of our argument is the relief here runs against the government self and that's what larson says is the crucial question i want to make a pitch even though i'm getting skepticism from you judge bias to go back and take a look at the machinery case which is it's a case they rely on i have when i got your order i went back and i read all the briefs in machinery and i listened to the oral argument and this issue is literally mentioned in a half a page by a pro plaintiff that that's not that was not the real issue in michigan i understand machine he says what it says but they all they say is that the only potentially a political waiver of sovereign immunity for machinery because the one who want to rely on wasn't if he had made an error then then perhaps he would not have stopped it but he didn't make an error well i'm not i'm not sure that's exactly right i think what he said is the only potentially the only potential support and that's at ten thirty two for machinery is larsen duigan a block quote this language from larson g again and then they say hey that turns out to be the same question as the next i just take a look i don't think it bears the weight that they put on it but i don't think in the end that it matters because i think we win either way because and it's so i don't think their constitutional claim is really a constitutional claim at all i don't think it creates an independent cause of action i also want to point out that they seek affirmative review here in a footnote eleven of larson says you can't use larson's you can if you're seeking affirmative relief this court has has tempered that language and said well it doesn't really go quite as far as it seems you have to look at what the burden on the governmental function would be of permitting reviews so it's not quite as simple as hey you're seeking affirmative relief so you lose at least in this circuit it's not that simple but but footnote eleven of larson says that and this circuit says  it would create too great a burden on the government operations we can't we're going to we're going to not apply larson do you can we think that's significant here because not only the delay in this individual court martial but considering the number of military installations both within and outside of the united states the number joining over these documents what they were admitted at the at the at the court martial you know none of the documents themselves were and minute at the court martial what they ended up doing is reaching a stipulation saying what happened and my understanding from opposing counsel i've not ever read those documents because i figured she didn't want any more people reading them than i already had but our defense counsel look at you know in the military  but i haven't looked at it my understanding just just to be candid is that the language that's in that stipulation that was used at trial i think a lot of the language is directly quoted out of the out of the  limited you know limited world where all these documents are zachary that's right they're only they only exist now in one place which is in like a locked room in the military filing just filing chamber someplace in okinawa when they'll be destroyed in a couple of years but but they are the fifteen pages of of heavily redacted documents that were actually turned over which apparently were used to create this stipulation those only exist in hardcopy in the same place to ok thank you thank you give me a minute thank you your honor there are actually at least two copies of her unredacted records in the military system one held by the defendant and the other held by the trial office  the prosecutor did have a private counsel at this in the court martial didn't have a military officer defendant those who are genius yes he had it he had it and he has one probably but we don't have that on  record but he was given and he's allowed to keep but he would only have the redacted version the and the case is not moot as long as those copies exist within the military because those copies are an affront to her privacy it was they're destroyed that's and if we want them to be destroyed and if they existed electronically anywhere in the military system we want that to be done as well they say they're going to be destroyed  next year well that's not entirely true the it the record shows that the record of the trial that's what the affidavit referred to as a record of trial gets destroyed after two years and these are not part of the record the copy some talking about in possession of the judge and the and the trial counsel are separate from that and they're affidavits don't say anything about that ok now you're over with by quick didn't that minute flies by i think your question is i don't have a question i was thinking time is that thank you very much counsel we appreciate