H.V.Z. v. United States and Fewell (2024)

Military Rule of Evidence (M.R.E.) 513(e)(2) provides that “[b]efore ordering the production ․ of a patient's records ․ the military judge must conduct a hearing” and that the “patient must be afforded a reasonable opportunity to attend the hearing and be heard.” The Court holds that this rule required the military judge to allow Appellant, H.V.Z., to contest the production of her nonprivileged mental health records. The Court remands the case to the United States Air Force Court of Criminal Appeals (AFCCA) for further consideration.

I disagree with the Court's action because, in my view, it is improper under the applicable standard of review. In this case, H.V.Z. is seeking a writ of mandamus. Our precedent has established that to succeed on a petition for a writ of mandamus, the “[a]ppellant must show [in part] that ․ the right to issuance of the writ is clear and indisputable.” Hasan v. Gross, 71 M.J. 416, 418 (C.A.A.F. 2012). Here, H.V.Z. did not show that M.R.E. 513(e)(2) gave her a clear and indisputable right to a writ of mandamus for a simply stated reason: H.V.Z. did not cite M.R.E. 513(e)(2) or make any argument about this rule in her briefs before this Court or the AFCCA. I therefore respectfully dissent.

At the request of Real Party in Interest, Technical Sergeant Michael K. Fewell (i.e., the accused), the military judge in this ongoing court-martial ordered the 56th Medical Group at Luke Air Force Base to produce H.V.Z.’s medical, mental health, and Family Advocacy records, after redacting any privileged communications from them. The military judge concluded that these records were discoverable under Rule for Courts-Martial (R.C.M.) 701(a)(2)(B), which provides in part:

[U]pon request of the defense, the Government shall permit the defense to inspect the results or reports of physical or mental examinations ․ which are within the possession, custody, or control of military authorities ․ if

(i) the item is relevant to defense preparation.

Although H.V.Z. objected to the production order, the military judge did not consider her objection because the military judge concluded that she lacked standing.

H.V.Z. sought review of the military judge's order and findings by petitioning the AFCCA for a writ of mandamus under Article 6b(e), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 806b(e) (2018). H.V.Z. argued that the production order violated her right to privacy under both Article 6b(a)(9), UCMJ, and the Fourth Amendment of the United States Constitution. H.V.Z. also contended that the documents were not discoverable under R.C.M. 701(a)(2)(B) for two reasons. First, she argued that the military judge had failed to make a determination about whether the records were relevant to defense preparation. Second, she averred that her records were not within the possession, custody, or control of the Government because trial counsel and other officials could not freely review her records; they could access the records only if they complied with federal privacy laws. H.V.Z. further argued that because the medical records were not within the possession, custody, or control of military authorities, R.C.M. 703(g)(3)(C)(ii) applied to the production of her records and this rule required the military judge to provide her an opportunity to object before issuing a subpoena for the records. Importantly, however, H.V.Z. did not cite or make any argument with respect to M.R.E. 513(e)(2) in either the petition for relief or the reply that she submitted to the AFCCA.

The AFCCA denied relief, reasoning that H.V.Z. had “fail[ed] to demonstrate the military judge was clearly and indisputably incorrect” in his ruling. In re HVZ, Misc. Dkt. No. 2023-03, 2023 CCA LEXIS 292, at *12, 2023 WL 4542948, at *5 (A.F. Ct. Crim. App. July 14, 2023) (unpublished). The AFCCA rejected H.V.Z.’s privacy argument under Article 6b, UCMJ, reasoning that the statute “does not create the right to be heard by the trial court on any and all matters affecting those rights.” Id. at *12, 2023 WL 4542948, at *5. The AFCCA considered H.V.Z.’s arguments with respect to R.C.M. 701(a)(2)(B) and R.C.M. 703(g)(3)(C)(ii), but determined that she had not met her burden to demonstrate that she was clearly and indisputably entitled to relief under these rules. Id. at *13, *18, 2023 WL 4542948, at *5, *7. The AFCCA reasoned that “it is possible for non-privileged but sensitive personal records to be in the possession of military authorities.” Id. at *17, 2023 WL 4542948, at *7. The AFCCA did not address the issue of whether H.V.Z. was entitled to object under M.R.E. 513(e)(2), presumably because H.V.Z. did not make any argument about that rule.

Before this Court, H.V.Z. did not cite M.R.E. 513(e)(2) in either her fifty-five-page initial brief or her twenty-seven-page reply brief. Indeed, out of all the briefs and amicus curiae briefs filed in this Court, only one even mentions M.R.E. 513(e)(2). The Real Party in Interest notes the existence of the rule but asserts—correctly—that it is not “the basis for Appellant's perceived violation of her rights.” And at oral argument, H.V.Z.’s counsel made no argument related to M.R.E. 513(e)(2) until the provision was raised sua sponte in questions from the Court.

Under these circumstances, I cannot agree that H.V.Z. has shown that M.R.E. 513(e)(2) entitled her to a clear and indisputable right to the writ of mandamus. Showing a right to a writ of mandamus is a demanding burden. Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 381 (2004). A petitioner cannot meet this burden through an argument that the petitioner does not even make. In re MaxPower Semiconductor, Inc., 13 F.4th 1348, 1352 (Fed. Cir. 2021) (declining to issue a writ of mandamus based on a theory that the dissent offered sua sponte and that relied on cases not cited by the petitioner); see also In re Itron, Inc., 883 F.3d 553, 570 n.1 (5th Cir. 2018) (Dennis, J., dissenting) (explaining that a “court may not grant the drastic and extraordinary relief of mandamus based on arguments that it raises sua sponte”). In my view, the Court should express no opinion on the potential import of M.R.E. 513(e)(2) because H.V.Z. did not preserve or present any argument about that rule. Instead, the Court should wait until arguments concerning the rule are properly presented and fully briefed.

Finally, I have carefully considered the arguments that H.V.Z. actually made before the AFCCA and that she now makes before this Court. I agree with the AFCCA's reasoning that H.V.Z. has not shown that Article 6b, UCMJ, established a clear and indisputable right to be heard at trial on the production motion. The language of Article 6b, UCMJ, does not expressly provide this right and no precedent has addressed the issue. Similarly, I agree with the AFCCA's reasoning that H.V.Z. cannot show that she has a clear and indisputable right to the writ of mandamus under R.C.M. 701(a)(2)(B) or R.C.M. 703(g)(3)(C)(ii) because it is not clear and indisputable that records held by the 56th Medical Group at Luke Air Force Base are not within the possession, custody, or control of the Government. I therefore would affirm the decision of the AFCCA.

Judge MAGGS, dissenting.