FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

E. V.,

Plaintiff-Appellant,

v.

EUGENE H. ROBINSON, JR., 

Lieutenant Colonel, U.S. Marine 

Corps, in his capacity as Military 

Judge; DAVID A. MARTINEZ, 

Sergeant, U.S. Marine Corps., as 

Indispensable Party,

Defendants-Appellees.

No. 16-16975

D.C. No.

2:16-cv-01973-

JAM-CKD

OPINION

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 nonconstitutional 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 nonconstitutional 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 safetyvalve 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 nonconstitutional 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. PallaresGalan, 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 “crimefraud” 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.