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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

E.V.,

Plaintiff,

v. Civil Action No. 16-1419 (JDB)

EUGENE H. ROBINSON, JR. and DAVID 

A. MARTINEZ (AS INDISPENSABLE 

PARTY),

 Defendants.

MEMORANDUM OPINION

Plaintiff E.V. has accused defendant David A. Martinez of sexually assaulting her. 

Because Martinez is a sergeant in the United States Marine Corps, the charges were referred to 

trial by court martial. That proceeding is currently ongoing before a military judge, defendant 

Lieutenant Colonel Eugene H. Robinson, Jr. On January 27, 2016, Judge Robinson ordered that 

E.V. disclose certain mental health records to Martinez over E.V.’s objection that the records are 

protected by a patient-psychotherapist privilege. E.V. has come to this Court seeking relief from 

Judge Robinson’s order. Because this Court is not the proper venue for E.V.’s complaint, the case 

will be transferred to the U.S. District Court for the Eastern District of California.

FACTUAL BACKGROUND

In August 2013, plaintiff E.V. accompanied her husband, a staff sergeant in the United 

States Air Force, to Kadena Air Force Base in Okinawa, Japan, where he was stationed. Compl. 

[ECF No. 4] ¶ 23. She alleges that on January 1, 2015, she was sexually assaulted by Sergeant 

Martinez. Id. ¶ 26. The detailed allegations need not be recounted here. What matters is what 

happened in the subsequent weeks and months as E.V. and her husband pursued a humanitarian 
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transfer off the base and E.V. sought, without avail, to keep her mental health records private in 

the court-martial proceeding against Martinez.

Beginning days after the assault, E.V. sought psychotherapy at the Kadena Health Clinic. 

Id. ¶ 27. Her treatment there continued until March 26, 2015. Id. Meanwhile, on February 12, 

2015, E.V.’s husband requested a compassionate reassignment to Travis Air Force Base in 

California so that E.V. could be near family and separated from Martinez and his friends. Id. ¶ 28. 

On February 17, 2015, E.V.’s husband’s commanding officer recommended approval of the 

transfer, id. ¶ 29, but Air Force regulations required that such request first be supported by an 

appropriate medical authority’s conclusion that remaining in the area would be detrimental to 

E.V.’s welfare, Ex. D to Pl.’s Mot. TRO [ECF No. 5-6] ¶ 3kk.

On February 20, 2015, E.V. was admitted to the U.S. Naval Hospital Okinawa for suicidal 

ideations. Compl. ¶ 30. She was discharged three days later and provided with a patient discharge 

summary. Id. ¶¶ 31–32. E.V.’s husband used this summary to substantiate his request for a 

compassionate reassignment, and the reassignment was approved on March 11, 2015. Id. ¶¶ 32, 

34. Upon returning to the United States, E.V. continued counseling in Sacramento, California. Id.

¶ 35. The Court details E.V.’s medical history here because it has become central to the ongoing 

court-martial proceeding against Martinez, where Judge Robinson has authorized the limited 

disclosure of E.V.’s communications with her psychotherapists. That disclosure order is at the 

crux of this case.

PROCEDURAL HISTORY

The military courts are governed by a set of rules of evidence including Military Rule of 

Evidence 513, which codifies a psychotherapist-patient privilege. Until 2015, this rule allowed a 

military judge to conduct an in camera review of communications with psychotherapists “‘if such 
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an examination is necessary to rule on the motion [to compel production].’” D.B. v. Lippert, 2016 

CCA Lexis 63, at *14 (A. Ct. Crim. App. Feb. 1, 2016) (quoting Mil. R. Evid. 513 (Manual for 

Courts-Martial, United States (2012 ed.))). Under that “somewhat nebulous rule,” id., review of 

the victim’s mental health records became “ubiquitous” in sexual assault cases, Maj. Cormac M. 

Smith, Applying the New Military Rule of Evidence 513: How Adopting Wisconsin’s 

Interpretation of the Psychotherapist Privilege Protects Victims and Improves Military Justice, 

Army Lawyer, Nov. 2015, at 6, 9. 

In 2014, Congress strengthened Rule 513 by eliminating “a frequently used 

‘constitutionally required’ exception to the privilege.” Smith, Applying the New Military Rule of 

Evidence 513, at 6; see National Defense Authorization Act for Fiscal Year 2015 (NDAA 2015), 

Pub. L. No. 113-291, § 537, 128 Stat. 3292, 3369 (2014). The legislation also required a party 

seeking production of privileged records to make a factual showing and authorized in camera 

review only under certain conditions. NDAA 2015, § 537, 128 Stat. at 3369. The President 

subsequently signed an executive order implementing these requirements. Exec. Order No. 

13,696, 80 Fed. Reg. 35,783 (June 17, 2015). Now, a military judge may only examine patientpsychotherapist communications in camera or disclose them if he finds by a preponderance of the 

evidence that the requested information meets one Rule 513’s enumerated exceptions. NDAA 

2015, § 537, 128 Stat. at 3369. There is no “constitutionally required” exception in the current 

Rule 513.

But when Judge Robinson ordered the government to turn over all of E.V.’s mental health 

records for in camera review on January 13, 2016, his order did not refer to a Rule 513 exception. 

Ex. 1 to Pl.’s Compl. [ECF No. 4-1] at 7–8. Nor did his subsequent order authorizing disclosure 

of select portions of the records. Ex. F to Pl.’s Mot. TRO [ECF No. 5-8]. It was only after “it 
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became apparent to [Judge Robinson] that [his] ruling needed to be clear on the analysis of how 

[he] reached the decision to . . . release” that Judge Robinson provided an explanation rooted in 

Rule 513. Ex. G to Pl.’s Mot. TRO [ECF No. 5-9]. In a supplemental ruling on February 19, 

2016, Judge Robinson found sua sponte that the disclosure of E.V.’s records was justified under 

Rule 513 exception (d)(5), which allows for disclosure where “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.” Mil. R. Evid. 513, as amended by Exec.

Order 13,696; see Ex. H to Pl.’s Mot. TRO [ECF No. 5-10] at 3–4. According to Judge Robinson, 

the timing of E.V.’s inpatient mental health treatment “casts doubts on the validity of any suicidal 

ideations” and suggests that she made them up in order to receive a humanitarian transfer. Ex. H 

at 3–4. Based on that (questionable) line of reasoning, Judge Robinson found the fraud exception 

applied: E.V. had sought the services of psychotherapists in order to enable her to commit fraud, 

i.e., obtaining an otherwise unmerited transfer from Okinawa. Judge Robinson also cited the 

repealed “constitutional exception,” finding without more explanation that disclosure was 

constitutionally required “as potentially exculpatory material favorable to the defense.” Id. at 4.

In accordance with 10 U.S.C. § 806b(e), E.V. petitioned the U.S. Navy-Marine Corps Court 

of Criminal Appeals (“CCA”) for a writ of mandamus to correct Judge Robinson’s alleged abuse 

of discretion in ordering the release of her mental health records. In a one-paragraph order the 

CCA denied E.V.’s petition the same day that it was docketed. The court found that E.V.’s “right 

to an issuance of a writ [was] not ‘clear and indisputable.’” Ex. 1 to Compl. at 20. From there, 

E.V. sought relief from the U.S. Court of Appeals for the Armed Forces (“CAAF”). On June 22, 

2016, the CAAF dismissed E.V.’s petition for lack of jurisdiction. Id. at 23–27.
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Feeling that military judges are regularly disregarding victims’ rights and the requirements 

of Rule 513, and that federal court was the only place where she had a fighting chance at relief, 

E.V. filed a complaint in this Court on July 8, 2016. She alleges that Judge Robinson’s discovery 

rulings violate Military Rule of Evidence 513, Article 6b of the Uniform Code of Military Justice, 

10 U.S.C. § 806b(a)(8), and the Constitution. To prevent the imminent disclosure of her 

communications, E.V. filed a motion for a temporary restraining order and preliminary injunction. 

After agreeing to maintain the status quo pending resolution of E.V.’s motions, Judge Robinson, 

who is represented by the U.S. Attorney’s Office for the District of Columbia, filed his opposition 

and a motion to dismiss for lack of jurisdiction, improper venue, and failure to state a claim. The 

Court held a hearing on July 20, 2016. 1

DISCUSSION

Under Rule 12(b)(3) and 28 U.S.C. § 1406(a), a case may be dismissed “when venue is 

‘wrong’ or ‘improper’ in the forum in which it was brought.” Atl. Marine Const. Co. v. U.S. Dist. 

Ct. for the W. Dist. of Tex., 134 S. Ct. 568, 577 (2013). When venue is challenged, the court must 

determine whether the case satisfies the requirements of federal venue laws. Id. “If it does, venue 

is proper; if it does not, venue is improper, and the case must be dismissed,” id., or, “if it be in the 

interest of justice,” transferred to any district in which the case could have been brought, 28 U.S.C. 

§ 1406(a). “The decision whether a transfer or a dismissal is in the interest of justice . . . rests 

within the sound discretion of the district court.” Naartex Consulting Corp v. Watt, 722 F.2d 779, 

789 (D.C. Cir. 1983).

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 Only Judge Robinson has appeared in this Court. Neither the United States (the prosecuting authority in 

the court martial proceeding) nor Sergeant Martinez have been heard from. Of course, on the merits of the discovery 

ruling under Rule 513, the United States might not agree with Judge Robinson. But at the hearing, his counsel stressed 

that she was authorized to raise only threshold challenges to this action, not to address the merits.
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The general venue provision for civil actions against federal officials “acting in [their] 

official capacity” states that actions may

be brought in any judicial district in which (A) a defendant in the 

action resides, (B) a substantial part of the events or omissions 

giving rise to the claim occurred, or a substantial part of property 

that is the subject of the action is situated, or (C) the plaintiff resides 

if no real property is involved in the action.

28 U.S.C. § 1391(e)(1). Unless the Court can fit this case into one of these three provisions, venue 

here is improper. 

E.V. admits that “most of the events giving rise to E.V.’s claim” occurred in Okinawa, 

Japan, Pl.’s Reply [ECF No. 13] at 9, but still tries to wedge this case within § 1391(e)(1)(B) on 

the razor-thin basis that both the CAAF and CCA are located in D.C. According to E.V., the 

appellate review by those courts constitutes a “substantial part of the . . . omissions giving rise to 

the claim.” Compl. ¶ 8. The “substantial part” requirement, though, limits venue to those districts 

in which “a considerable portion of the events took place.” Perlmutter v. Varone, 59 F. Supp. 3d 

107, 110 (D.D.C. 2014).2 In determining whether the “substantial part” requirement is met, courts 

should undertake a “commonsense appraisal” of the “events having operative significance in the 

case.” Lamont v. Haig, 590 F.2d 1124, 1134 & n.62 (D.C. Cir. 1978). While the decisions of the 

CAA and CAAF had an impact on E.V.’s situation, the eventsthat matter in this challenge occurred 

in Japan—not in Washington, D.C. It is the events in the proceeding before Judge Robinson, and 

the parties’ actions immediately preceding that court martial, that really matter here. Furthermore, 

the Court cannot help but observe that if it were to accept E.V.’s argument, then every challenge 

 2 Because § 1391(e)(1)(B) is identical to 28 U.S.C. § 1391(b)(2), cases construing that general venue 

provision are “helpful in construing this provision.” 14D Charles Alan Wright et al., Federal Practice and Procedure

§ 3815 (4th ed. 2013).
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to any court martial anywhere in the world that had been appealed within the military court system 

could be brought in this district. Such a result seems untenable. 

E.V. also attempts an acrobatic argument based on a line of cases finding that the Secretary 

of the Navy can be sued in the District of Columbia because, although the Navy’s main office is 

located in Virginia, the Secretary performs a significant amount of his official duties in the District 

of Columbia. See Vince v. Mabus, 956 F. Supp. 2d 83 (D.D.C. 2013); Smith v. Dalton, 927 F. 

Supp. 1 (D.D.C. 1996). E.V. argues that because the Marine Corps Headquarters is also located 

in Virginia, “just across the river,” the same logic should apply here. Pl.’s Reply at 9. But E.V. 

misses the point. What mattered in those cases was not the geographic proximity of the Navy’s 

main office, but the fact that despite being stationed at the Pentagon, the Secretary nonetheless 

performed a significant amount of his official work in D.C. and was therefore a resident of D.C. 

under § 1391(e)(1).3

 There is no similar showing here that either Judge Robinson or Sergeant 

Martinez perform official duties in D.C. Rather, it is quite plain that “Judge Robinson and 

Defendant Martinez both reside in Okinawa, Japan.” Pl.’s Reply at 9. And they are the only two 

defendants that E.V. has sued.

Finally, E.V. makes a last-ditch argument that venue is proper here because “no court in 

the country is more familiar with actions like this against the federal government.” Id. at 9. But 

venue is not a question of judicial expertise. (And even if it were, this Court has exactly zero 

experience with Military Rule of Evidence 513.) Rather, the question of proper venue “depends 

exclusively on whether the court in which the case was brought satisfies the requirements of federal 

venue laws.” Atl. Marine, 134 S. Ct. at 577. Here the requirements of § 1391(e) are not met. 

 3 In determining a defendant’s residency under § 1391(e), “[w]hat controls is the official residence of the 

federal defendant where the official duties are performed.” Lamont v. Haig, 590 F.2d 1124, 1128 n.19 (D.C. Cir. 

1978).
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Having concluded that venue is improper in the District of Columbia, the Court must either 

dismiss the action or transfer it to any district in which it could have been brought. Transfer is 

appropriate “when procedural obstacles [such as lack of personal jurisdiction, improper venue, and 

statute-of-limitations bars] impede an expeditious and orderly adjudication on the merits.” Sinclair 

v. Kleindienst, 711 F.2d 291, 293–94 (D.C. Cir. 1983) (internal quotation marks and alteration 

omitted). Generally, the interests of justice require transferring a case to the appropriate judicial 

district rather than dismissing it. See Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466–67 (1962).

Section 1391(e)(1)(C) expressly provides for venue in the district in which the plaintiff 

resides. That district here is the Eastern District of California because E.V. is a resident of 

Sacramento. E.V. Decl. [ECF No. 5-13] ¶ 2. Transferring the case to that district is plainly in the 

interest of justice.

CONCLUSION

Transfer of this case should not be mistaken for agreement with Judge Robinson’s rulings 

under Military Rule of Evidence 513. Serious challenges to the propriety of those rulings have 

been presented. But the Court’s admitted concern about the outcome before Judge Robinson is 

ultimately of no moment because this Court is not the proper venue for E.V.’s challenge. 

Moreover, there is a looming question whether any federal court will be an appropriate place to 

hear this case in light of Schlesinger v. Councilman, 420 U.S. 738 (1975). But that question of 

equitable jurisdiction will not be resolved by this Court either. Instead, for the reasons stated 

above, the Court will transfer this action to the United States District Court for the Eastern District 

of California.4 The parties will presumably argue there whether E.V. can receive the relief she 

seeks in federal court.

 4 The Court expects, that as agreed to by defendants, the status quo will be maintained until the transferee 

court has an opportunity to address this matter.
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 /s/ 

 JOHN D. BATES

 United States District Judge

Dated: August 2, 2016