AV2 v. McDonough, Civil Action 22-369

CourtUnited States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
Writing for the CourtGERALD J. PAPPERT, J.
PartiesAV2, Plaintiff, v. DENIS RICHARD MCDONOUGH Secretary of Veterans Affairs MONIQUE SMART Staff Attorney, Department of Veterans Affairs LLOYD J. AUSTIN, III Secretary of Defense UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES ARMY COURT OF CRIMINAL APPEALS JOHN HARPER COOK Colonel, U.S. Army In his Capacity as a Military Judge CLINTON M. MURRAY Master Sergeant, U.S. Army As Indispensable Party, Defendants.
Decision Date20 April 2022
Docket NumberCivil Action 22-369

AV2, Plaintiff,

DENIS RICHARD MCDONOUGH Secretary of Veterans Affairs MONIQUE SMART Staff Attorney, Department of Veterans Affairs LLOYD J. AUSTIN, III Secretary of Defense UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES ARMY COURT OF CRIMINAL APPEALS JOHN HARPER COOK Colonel, U.S. Army In his Capacity as a Military Judge CLINTON M. MURRAY Master Sergeant, U.S. Army As Indispensable Party, Defendants.

Civil Action No. 22-369

United States District Court, E.D. Pennsylvania

April 20, 2022



Former Army officer AV2 was allegedly sexually assaulted by Master Sergeant Clinton Murray and is a witness in Murray's upcoming military court trial.[1] The military judge overseeing Murray's case ruled that certain communications between


AV2 and a Department of Veterans Affairs psychotherapist were not protected from disclosure under the Military Rules of Evidence. AV2 sought relief in the two military appellate courts, but both affirmed the military judge's ruling.

AV2 now asks the Court to “revise and correct” what she believes all three military courts got wrong. The Defendants moved to dismiss the case, and the Court, after reviewing the parties' briefing and holding oral argument, grants the Motion. Some of AV2's claims are barred by sovereign and judicial immunities, while the Court lacks subject matter and equitable jurisdiction to review the rest. With isolated exceptions not applicable here, Article III courts do not have the authority to review military judges' rulings.



AV2 was assigned to the United States Army's 82nd Airborne Division at Fort Bragg, North Carolina, and deployed to Afghanistan from April of 2017 to January of 2018. (Compl. ¶ 6, ECF 1-1.) She was allegedly sexually assaulted by Master Sergeant Murray after returning to Fort Bragg in May of 2018. (Id. at ¶ 37.) The next month, she was diagnosed with post-traumatic stress disorder and has since received “continual[]” treatment from psychotherapists. (Id. at ¶ 38.) AV2 was honorably discharged in May of 2020. (Id. at ¶ 8.)

Four months before being discharged, AV2 applied for medical benefits from the Department of Veterans Affairs so she could continue her PTSD treatment as a civilian. (Id. at ¶ 40.) To be allowed to do so, AV2 had to file a claim with the VA and receive from it a PTSD diagnosis. (Id. at ¶ 41.) AV2 was evaluated by a VA psychotherapist,


who then completed the “Initial Post Traumatic Stress Disorder (PTSD) Disability Benefits Questionnaire.” (Id. at ¶ 42; Pl. Ex. F, ECF 1-7.) The Questionnaire includes AV2's confidential communications with the psychotherapist. (Compl. ¶ 44.)

The Questionnaire is the subject of AV2's lawsuit in this Court. (Compl. ¶ 42.) Specifically, she challenges its disclosure in pretrial proceedings for Murray's court-martial at Fort Bragg, which is scheduled to start June 13, 2022. (Id. at ¶ 29.) Colonel John Harper Cook is the presiding military judge.


On May 7, 2021, AV2's special victims' counsel (“SVC”)[2] provided the government documents pertaining to AV2's VA claim for disability benefits, and the government gave them to the defense. (Feb. 16, 2022 Cook Order ¶ 1, Defs. Ex. A, ECF 11-1.) The defense then moved for the production of more of her claim records. (Id. at ¶ 2.)

Judge Cook held a hearing on this issue on May 27, 2021. He first found AV2's records were relevant and necessary for the defense because if one files a “claim for money, and claiming that it is related to these charges, ” it is evidence for bias impeachment. (Hr'g Tr. 7:10-16, 34:18-20, Defs. Ex. B, ECF 11-2.) The key issue at the hearing, however, was whether her records were privileged under a military rule of evidence providing patients a privilege to refuse and prevent the disclosure of confidential communications between the patient and a psychotherapist if “made for the purpose of facilitating diagnosis or treatment” of her mental or emotional condition. Mil. R. Evid. 513.


AV2's SVC confirmed there was no privilege claim under MRE 513 but said the records may include information to which the rule applies. See (Hr'g Tr. 36:16-19, 37:20-24). Judge Cook then proposed ordering the government to have the custodian of AV2's records send them to him for an in camera review, scrutinizing them for information covered by MRE 513 and contacting her SVC ex parte to discuss any potential privilege claims. See (id. at 42:13-43:7). MRE 513 questions would then be litigated if needed, and if appropriate the records would ultimately be disclosed to the parties. See (id. at 43:12-44:7). AV2's SVC and the parties agreed with this proposal, so Judge Cook issued an order formalizing it after the hearing. (Id. at 46:11-21, 49:1822; May 27, 2021 Cook Order 4, Pl. Ex. G, ECF 1-8.) He also granted the SVC's request that he order the VA to exclude MRE 513 information from the records. (Hr'g Tr. 47:15-19; May 27, 2021 Cook Order 4.)

Within a few days, Monique Smart, a staff attorney at the VA Office of General Counsel, was contacted by a VA medical center privacy officer about the release of AV2's records. (Smart Decl. ¶ 2, Defs. Ex. D, ECF 11-4.) On June 2, 2021, she learned the Department of Defense sought AV2's Veterans Benefit Administration records and that the VBA needed a “signed release” or an order from a federal court to release them. (Id. at ¶ 4; Smart Email Chain 13, Pl. Ex. H, ECF 1-9.) The next day, Smart asked counsel to provide a signed release from AV2 because the military-court order she received was insufficient. (Smart Email Chain 3.) She explained that though the Privacy Act covered AV2's records, AV2 could voluntarily sign the release or Judge Cook could order her to sign it. See (id. at 2; Smart Decl. ¶ 5).


On June 7, 2021, the prosecutor (referred to as trial counsel in the military courts) sent Smart a release signed by AV2 and her SVC. (Id. at 1; Smart Decl. ¶ 6; AV2 Records Release, Pl. Ex. I, ECF 1-10.) Two days later, a VA privacy officer mailed the records to Judge Cook. (Records Shipment Letter, Defs. Ex. E, ECF 11-5.)


Judge Cook reviewed the records, including the Questionnaire, in camera, and sent them to AV2's SVC, who claimed all thirteen of its pages, among other records, were privileged under MRE 513. (June 24, 2021 Cook Order ¶¶ 6-7, Defs.' Ex. F, ECF 11-6.)

On June 24, 2021, Judge Cook issued an interim ruling ex parte to AV2's SVC stating that he intended to release the Questionnaire with redactions to only three pages. (Id. at 8-9.) Judge Cook stated he “wrestled” with this decision, noting the Questionnaire says it is for “disability evaluation, not for treatment purposes.” (Id. at 7-8.) He explained AV2 communicated with the VA psychotherapist “for the purpose of determining her eligibility for VA disability benefits, ” not for “facilitating diagnosis or treatment” of her mental or emotional condition. (Id. at 8.)

Judge Cook issued his final ruling on June 28, 2021. (Pl. Ex. A, ECF 1-2.) After considering an objection from SVC, he maintained his decision to release most of the Questionnaire to the parties unredacted. See (Defs. Ex. G, ECF 11-7; June 28, 2021 Cook Order ¶ 10(b)). Judge Cook stayed the release of AV2's records, however, because SVC told him AV2 intended to file for “extraordinary” relief in the next level of the military court system. (June 28, 2021 Cook Order ¶ 11.)



Congress has created “specialized military courts.” Ortiz v. United States, 138 S.Ct. 2165, 2170 (2018). At the trial level, “officer-led” courts-martial decide cases for a “vast swath of offenses” and are “subject to several tiers of appellate review” as part of an “integrated ‘court-martial system'” resembling state courts. See id. at 2170-71, 2174-75 (quoting United States v. Denedo, 556 U.S. 904, 920 (2009) (Roberts, C.J., concurring in part and dissenting in part)); Schlesinger v. Councilman, 420 U.S. 738, 758 (1975). Army cases like Murray's are appealed to the Army Court of Criminal Appeals (“ACCA”), then the Court of Appeals for the Armed Forces (“CAAF”). See Weiss v. United States, 510 U.S. 163, 166-69 (1994). Supreme Court review by writ of certiorari is also available for certain cases, though not this one.[3]

The military justice system's “essential character” is “judicial.” Ortiz, 138 S.Ct. at 2174-75 (explaining courts-martial operate as “instruments of military justice” rather than “military command” and exercise “judicial power” of the “same kind” civilian courts wield (internal quotation marks omitted)). But military law is a “jurisprudence which exists separate and apart from” the governing law in federal courts. Burns v. Wilson, 346 U.S. 137, 140 (1953). Indeed, military courts are “Article I legislative court[s] with jurisdiction independent of” the Article III judicial power. Gosa v. Mayden, 413 U.S. 665, 686 (1973).



On July 12, 2021, AV2 filed a petition in the ACCA for a writ of mandamus ordering Judge Cook to apply MRE 513 to the entire Questionnaire. (Defs. Ex. I, ECF 11-9.) The ACCA subsequently denied the petition. (Pl. Ex. B, ECF 1-3.) AV2 appealed that decision to the CAAF, which similarly ruled against her. (Defs. Ex. K, ECF 11-11; Pl. Ex. C, ECF 1-4.) AV2 then filed a petition for reconsideration and moved for an in camera ex parte review of the Questionnaire. (Defs. Ex. L, ECF 11-12.) The CAAF denied both requests. (Dec. 9, 2021 CAAF Order, Pl. Ex. D, ECF 1-5.)

On January 26, 2022, Judge Cook told counsel he would release AV2's records, including the Questionnaire, to the parties on February 4. See (Pl. Ex. E, ECF 1-6). A week before the scheduled release, AV2 filed her Complaint in this Court against Judge Cook in his capacity as a military judge, Murray as an indispensable party, Smart, Secretary of Veterans Affairs Denis McDonough, Secretary of Defense Lloyd Austin, the ACCA and the CAAF. (ECF 1.)

In Count I, AV2 alleges Smart and...

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