OCTOBER TERM, 2001
Syllabus
CHRISTOPHER, FORMER SECRETARY OF STATE, ET AL.
v.
HARBURY
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT
No. 01-394. Argued March 18, 2002-Decided June 20, 2002
Respondent-plaintiff Harbury alleges that Government officials
intentionally deceived her in concealing information that her
husband, a Guatemalan dissident, had been detained, tortured, and
executed by Guatemalan army officers paid by the Central
Intelligence Agency (CIA), and that this deception denied her
access to the courts by leaving her without information, or reason
to seek information, with which she could have brought a lawsuit
that might have saved her husband's life. In the District Court,
Harbury raised against the CIA, State Department, National Security
Council, and officials of each, common- and international law tort
claims, and claims under
Bivens v.
Six Unknown Fed.
Narcotics Agents, 403 U. S. 388, on behalf
of her husband's estate, and on her own behalf for violation of,
inter alia, her constitutional right of access to courts.
The District Court dismissed the
Bivens claims. With respect
to the access-to-courts counts, the court held that Harbury had not
stated a valid cause of action because (1) having filed no prior
suit, she could only guess how the alleged coverup might have
prejudiced her rights to bring a separate action, and (2) the
defendants would be entitled to qualified immunity. Harbury
appealed the dismissal of her
Bivens claims, but the
District of Columbia Circuit reversed only the dismissal of her
Bivens claim against petitioners for denial of access to
courts.
Held: Harbury has not stated a claim for denial of
judicial access.
Pp. 412-422.
(a) Access-to-courts claims fall into two categories: claims
that systemic official action frustrates a plaintiff in preparing
and filing suits at the present time, where the suits could be
pursued once the frustrating condition has been removed; and claims
of specific cases that cannot be tried, no matter what official
action may be in the future. Regardless of whether the claim turns
on a litigating opportunity yet to be gained or an opportunity
already lost, the point of recognizing an access claim is to
provide some effective vindication for a separate and distinct
right to seek judicial relief for some wrong. Thus, the
access-to-courts right is ancillary to the underlying claim,
without which a plaintiff cannot have suffered injury by being shut
out of court. It follows that the
404
Syllabus
underlying claim is an element that must be described in the
complaint as though it were being independently pursued; and that,
when the access claim (like this one) looks backward, the complaint
must identify a remedy that may be awarded as recompense but not
otherwise available in some suit that may yet be brought. The
underlying cause of action and its lost remedy must be addressed by
allegations in the complaint sufficient to give the defendant fair
notice. The facts of this case underscore the need for care in
stating a tenable predicate cause of action. The alleged acts were
apparently taken in the conduct of foreign relations by the
National Government, and any judicial enquiry will raise concerns
for the separation of powers in trenching on matters committed to
the other branches. Since the need to resolve such constitutional
issues should be avoided where possible, the trial court should be
in a position as soon as possible to know whether a constitutional
ruling may be obviated because the denied access allegations fail
to state a claim. Pp.412-418.
(b) Harbury's complaint did not come even close to stating a
constitutional denial-of-access claim upon which relief could be
granted. It did not identify the underlying cause of action that
the alleged disruption had compromised, leaving the District Court
and the defendants to guess as to the unstated action supposedly
lost and at the remedy being sought independently of relief that
might be available on the complaint's other counts. Harbury's
position did not improve when the Court of Appeals gave her counsel
an opportunity at oral argument to supply the missing allegations.
He stated that she would have brought an action for intentional
infliction of emotional distress as one wrong for which she could
have sought the injunctive relief that might have saved her
husband's life. But that does not satisfy the requirement that a
backward-looking denial-of-access claim provide a remedy that could
not be obtained on an existing claim, for the complaint's counts
naming the CIA defendants, including the Guatemalan officer who
allegedly tortured and killed her husband, are among the tort
claims that survived the motion to dismiss in the District Court.
Harbury can seek damages and possibly some sort of injunctive
relief for the consequences of the infliction of emotional distress
alleged in those counts, although she cannot obtain the order that
might have saved her husband's life. But neither can she obtain
such an order in her access claim, which therefore cannot
recompense her for the unique loss she claims as a consequence of
her inability to bring an intentional-infliction action earlier.
Pp. 418-422.
233 F.3d
596, reversed and remanded.
405
SOUTER, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and STEVENS, O'CONNOR, SCALIA, KENNEDY, GINSBURG,
and BREYER, JJ., joined. THOMAS, J., filed an opinion concurring in
the judgment,
post, p. 422.
Richard A. Cordray argued the cause for petitioners.
With him on the briefs was
Harry Litman.
Solicitor General Olson argued the cause for the United States
as amicus curiae urging reversal. With him on the brief were
Assistant Attorney General McCallum, Deputy Solicitor General
Clement, Patricia A. Millett, Barbara L. Herwig, and Robert M.
Loeb.
Jennifer K. Harbury, respondent, argued the cause and
filed a brief
pro se. *
JUSTICE SOUTER delivered the opinion of the Court.
Respondent-plaintiff in this case alleges that Government officials
intentionally deceived her in concealing information that her
husband, a foreign dissident, was being detained and tortured in
his own country by military officers of his government, who were
paid by the Central Intelligence Agency (CIA). One count of the
complaint, brought after the husband's death, charges that the
official deception denied respondent access to the courts by
leaving her without information, or reason to seek information,
with which she could have brought a lawsuit that might have saved
her husband's life. The issue is whether this count states an
actionable claim. We hold that it does not, for two reasons. As
stated in the complaint, it fails to identify an underlying cause
of action for relief that the plaintiff would have raised had it
not been for the deception alleged. And even after a
*Briefs of
amici curiae urging affirmance were filed for
the Association of Trial Lawyers of America by
Jeffrey R.
White and
Laura C.
Tharney; for the Brennan
Center for Justice by
Jodie L. Kelley; and for the Lawyers'
Committee for Civil Rights of the San Francisco Bay Area et al. by
Robert E. Borton, Scott D. Wiener, Robert Rubin, Steven R.
Shapiro, and
Lucas Guttentag.
406
subsequent, informal amendment accepted by the Court of Appeals,
respondent fails to seek any relief presently available for denial
of access to courts that would be unavailable otherwise.
I
Respondent Jennifer Harbury, a United States citizen, is the
widow of Efrain Bamaca-Velasquez, a Guatemalan rebel leader who
vanished in his own country in March 1992. Since we are reviewing a
ruling on motion to dismiss, we accept Harbury's factual
allegations and take them in the light most favorable to her. See
Leatherman v.
Tarrant County Narcotics Intelligence and
Coordination Unit, 507 U. S. 163, 164 (1993). Bamaca was
captured by Guatemalan army forces, including officers trained (in
the United States), paid, and used as informants by the CIA. App.
27-28 (Respondent's Second Amended Complaint ~~ 35-42, 46-47). He
was detained and tortured for more than a year to obtain
information of interest to the CIA, for which it paid.
Id.,
at 28 (~~ 43, 46-47). Bamaca was summarily executed on orders of
the same Guatemalan officers affiliated with the CIA,
id.,
at 28-29 (~~ 48-49), sometime before September 1993,
id., at
31 (~66), 34 (~84).1
The CIA knew as early as March 18, 1992, that the Guatemalan
army had captured Bamaca alive and shared this information with the
White House and State Department.
Id., at 27 (~35).
Officials there, however, "intentionally misled" Harbury, by
"deceptive statements and omissions, into believing that concrete
information about her husband's fate did not exist because they did
not want to threaten their ability to obtain information from Mr.
Bamaca through his detention and torture."
Id., at 31
(~67).
1 Harbury says in a footnote in her brief before this Court that
"[n]ew evidence exists suggesting that Mr. Bamaca in fact survived
well into 1994 if not longer," Brief for Respondent 23, n. 3, but
the factual allegations in her complaint unequivocally state that
the Government knew that Bamaca had been killed by September
1993.
407
Harbury makes three specific allegations of such Government
deception, all involving State Department officials, while Bamaca
was still alive. First, she says she contacted several unnamed
State Department officials in March 1993 to express concerns about
her husband, who, according to an eyewitness, was still alive.
Id., at 29 (~~ 50, 55). They "promised to look into the
matter and to assist her,"
ibid., but they neither gave her
nor made public any information about Bamaca, though CIA reports
from as early as May 1993 confirmed he was still alive.
Id.,
at 30 (~~ 56-59). Second, in August 1993, Marilyn McAfee, then
Ambassador to Guatemala, advised Harbury to submit a written report
to the effect that remains found in a grave purported to be her
husband's were not in fact his, as Harbury promptly did.
Id., at 30-31 (~~ 60-63). Although McAfee promised that she
would "investigate the matter immediately[,] report her findings,"
and keep Harbury "properly informed regarding her husband's
situation,"
ibid. (~62), she gave Harbury no information,
id., at 31 (~ 64). Third, in September 1993 (the same month
that the Government learned Bamaca was dead,
ibid. (~66)),
Harbury engaged in a week-long hunger strike in Guatemala City to
focus public attention on her husband's plight, but the State
Department told her nothing,
id., at 31-32 (~~ 64-68).
According to Harbury's allegations, the Government's deceptions
and omissions continued and intensified after Bamaca was killed.
From October 1993 until March 1995, officials of the State
Department and National Security Council (NSC) repeatedly met and
communicated with Harbury,
id., at 32 (~~ 70-71), 34 (~~ 80,
83), 35 (~86), conveying the impression that they knew nothing for
sure but were seeking "concrete information" about her husband and
would keep her informed,
id., at 33 (~75). At one point, in
November 1994, National Security Adviser Anthony Lake told Harbury
that the Government had "'scraped the bottom of the barreI''' to no
avail in seeking information about her husband,
408
id., at 34 (~83). All along, however, the Government
officials knew that Bamaca had been killed by the Guatemalan army,
ibid. (~84), but engaged in misleading statements and
omissions because they did not want their complicity in Bamaca's
torture and death revealed,
id., at 36 (~ 92). Harbury
learned that her husband was dead only in March 1995 when a
congressman publicly announced that Bamaca had been killed on the
orders of a Guatemalan army colonel who was also a paid agent of
the CIA,
ibid. (~91).
II
A year later, in March 1996, Harbury filed suit in the District
Court for the District of Columbia against the CIA, the State
Department, the NSC, and members of each in their official and
individual capacities. The complaint, as amended, listed 28 causes
of action under federal, state, and international law. App. 38-62.
Although only the accessto-courts counts directly concern us here,
it is important to know Harbury's other claims, in order to
determine whether she has stated a tenable claim for denial of
judicial access.
A
Harbury's complaint sought relief in four categories other than
access to courts. First, on behalf of Bamaca's estate, she raised
claims against the CIA defendants under the Due Process Clause of
the Fifth Amendment for his imprisonment, torture, and execution,
seeking declaratory and injunctive relief,2 and money damages
against the officials in their individual capacities on the theory
of
Bivens v.
Six Unknown Fed. Narcotics Agents,
403 U. S. 388
(1971). App. 38-42 (counts 1-5). Next, on her own behalf, Harbury
sued all the Government defendants for declaratory and injunctive
relief
2 The injunctive relief Harbury sought in these (and other)
counts was disclosure of information "concerning her husband's
death and the location of his body" and an order to prevent
"[d]efendants from taking such actions in the future." App. 63.
409
and money damages under
Bivens for violating her "right
to familial integrity" under the First, Fifth, and Ninth Amendments
by imprisoning, torturing, and executing her husband.
Id.,
at 42-48 (counts 6-13). Third, she alleged common law torts
invoking the Federal Tort Claims Act, 28 U. S. C. §§ 2401(b) and
2675, App. 54, (1) on behalf of herself and her husband's estate
against the CIA defendants for intentional infliction of emotional
distress by causing and conspiring to cause Bamaca's imprisonment,
torture, and execution,
id., at 55 (counts 18-19); (2) on
behalf of her husband's estate against the CIA defendants for
negligent supervision resulting in his false imprisonment, assault
and battery, and wrongful death,
id., at 56-58 (counts
20-22); and (3) on her own behalf against the State Department and
NSC defendants for intentional and negligent misrepresentation,
constructive fraud, interference with the right to possess a
spouse's dead body,
id., at 58-62 (counts 24-27), and
intentional infliction of emotional distress by making
"intentionally deceptive statements and omissions ... about her
husband, including concealing whether or not he was alive"
id., at 58 (count 23). Fourth, Harbury brought a tort claim
said to arise under international law against the CIA defendants on
behalf of herself and her husband's estate.
Id., at 62
(count 28).
In addition to these counts for direct harm, Harbury relied on
the First and Fifth Amendments in raising four claims that the
deceptive statements and omissions of the State Department and NSC
defendants had unconstitutionally impeded her access to courts,
id., at 49-51 (counts 14-15), as well as her rights to speak
freely and to petition the Government,
id., at 51-54 (counts
16-17). The basic theory as to access to courts was that if the
officials had shared what they knew or simply said "no comment"
rather than affirmatively misleading Harbury into thinking they
were doing something, she might have been able "to take appropriate
actions
410
to save her husband's life."
Id., at 37 (~98).3 Harbury
alleged that she "was foreclosed from effectively seeking adequate
legal redress."
Ibid.
B
For failure to state a claim, the District Court dismissed all
counts for declaratory and injunctive relief (counts 1-3, 6-9, 14,
16). It also dismissed all the
Bivens counts: those on
behalf of Bamaca's estate for his torture and execution said to
have violated his Fifth Amendment due process rights (counts 4-5),
and those brought on Harbury's own behalf based on the claimed
violation of her constitutional rights of familial association
(counts 10-13), access to courts (count 15), and free speech and
access to Government (count 17). But the District Court denied the
defendants' motion to dismiss the tort claims at common law (counts
18-27) and international law (count 28).
With respect to the access-to-courts claims (including Harbury's
Bivens claim on this theory), the District Court
acknowledged that five Courts of Appeals "have held that
conspiracies to destroy or cover-up evidence of a crime that render
a plaintiff's judicial remedies inadequate or ineffective violat[e]
the right of access," App. to Pet. for Cert. 43a, but held that
Harbury had not stated a valid cause of action for two reasons.
First, the court held that Harbury's claim "would have to be
dismissed" (without prejudice) because, having filed no prior suit,
she had "nothing more than a guess" as to how the alleged coverup
might "have prejudiced her rights to bring a separate action."
Id., at 46a. Second, the District Court reasoned that the
defendants in any event would be entitled to qualified immunity in
their individual capacities because, unlike officials in coverup
cases who destroyed, manufactured, or hid evidence, the de-
3 Harbury did not allege that the State Department and NSC
defendants had an affirmative duty to disclose or to provide
information about her husband in response to her informal
requests.
411
fendants here did not act contrary to "clearly established
constitutional norms that a reasonable official would understand"
in being less than "forthcoming in discussing the intelligence that
they received about Bamaca."
Id., at 48a-49a.
C
Harbury did not pursue her claims for declaratory or injunctive
relief, and appealed only the dismissal of the
Bivens causes
of action.
Harbury v.
Deutch, 233
F.3d 596, 600-601
(CADC 2000). The Court of Appeals for
the District of Columbia Circuit affirmed the dismissal of the
Bivens claims of violations of Bamaca's due process rights,
233 F. 3d, at 604, Harbury's rights of familial association,
id., at 606-607, and her free speech and petition rights. 4
It reversed the dismissal, however, of Harbury's
Bivens
claim against the State Department and NSC defendants for denial of
access to courts.
Id., at 607-611.
The Court of Appeals agreed with the District Court that a
plaintiff who merely alleges without factual basis in the conduct
of a prior lawsuit that" 'key witnesses ... may now be dead or
missing, ... crucial evidence may have been destroyed, and ...
memories may have faded'" generally falls short of raising a claim
for denial of access to courts.
Id., at 609 (quoting the
District Court). The court held, however, that Harbury's
allegations stated a valid access claim insofar as she alleged that
the Government's conduct had "effectively prevented her from
seeking emergency injunctive relief in time to save her husband's
life."
Ibid. The District of Columbia Circuit went on to
conclude that "[b]ecause his death completely foreclosed this
avenue of relief, nothing would be gained by requiring Harbury to
postpone this aspect of her access to courts cause of action until
she
4 The Court of Appeals did not explicitly say that this
Bivens claim (count 17) was dismissed, but, in reversing the
District Court, it spoke only of a single claim of "access to
courts." 233 F. 3d, at 611 ("[W]e reverse the district court's
dismissal of Harbury's access to courts claim").
412
finishes prosecuting her tort claims."
Ibid. Nor did the
court hold that qualified immunity would bar suit because, in its
words, "we think it should be obvious to public officials that they
may not affirmatively mislead citizens for the purpose of
protecting themselves from suit."
Id., at 611.5
D
Three categories of claims were left in the case after the Court
of Appeals's decision: the various common law tort claims including
intentional infliction of emotional distress, the international law
claim against the CIA defendants (neither of which the District
Court had dismissed), and Harbury's
Bivens claims against
the State Department and NSC defendants for preventing access to
courts (which the Court of Appeals reinstated). The defendant
officials petitioned for review of the court's holding as to the
claim of denial of access to courts, but Harbury did not
cross-petition on the other
Bivens claims, leaving the
Bivens access claim 6 the sole matter before us. We granted
certiorari, 534 U. S. 1064 (2001), because of the importance of
this issue to the Government in its conduct of the Nation's foreign
affairs, and now reverse.
III A
This Court's prior cases on denial of access to courts have not
extended over the entire range of claims that have been brought
under that general rubric elsewhere, but if we con-
5 The District of Columbia Circuit denied rehearing,
Harbury v.
Deutch, 244 F.3d
956, 957 (2001)
(per curiam), and rehearing en bane,
244 F.3d
960, 961 (2001), with two judges dissenting from denial of
rehearing en bane.
6 The petitioners did not challenge below the existence of a
cause of action under
Bivens v.
Six Unknown Fed.
Narcotics Agents, 403 U. S. 388 (1971), and
we express no opinion on the matter in deciding this case.
413
sider examples in the Courts of Appeals 7 as well as our own,
two categories emerge. In the first are claims that systemic
official action frustrates a plaintiff or plaintiff class in
preparing and filing suits at the present time. Thus, in the
prisonlitigation cases, the relief sought may be a law library for
a prisoner's use in preparing a case,
Bounds v.
Smith, 430 U.
S. 817, 828 (1977);
Lewis v.
Casey, 518 U. S. 343, 346-348
(1996), or a reader for an illiterate prisoner,
id., at
347-348, or simply a lawyer,
ibid. In denial-of-access cases
challenging filing fees that poor plaintiffs cannot afford to pay,
the object is an order requiring waiver of a fee to open the
courthouse door for desired litigation, such as direct appeals or
federal habeas petitions in criminal cases,8 or civil suits
asserting family-law rights,
e. g., Boddie v.
Connecticut, 401 U. S. 371, 372 (1971)
(divorce filing fee);
M. L. B. v. S.
L. J.,
519 U. S.
102,106-107 (1996) (record fee in parental-rights termination
action). In cases of this sort, the essence of the access claim is
that official action is presently denying an opportunity to
litigate for a class of potential plaintiffs. The opportunity has
not been lost for all time, however, but only in the short term;
the object of the denial-of-access suit, and the justification for
recognizing that claim, is to place the plaintiff in a position to
pursue a separate claim for relief once the frustrating condition
has been removed.
The second category covers claims not in aid of a class of suits
yet to be litigated, but of specific cases that cannot now
7See,
e. g., Delew v.
Wagner, 143 F.3d
1219, 1222-1223
(CA9 1998); Swekel v.
River
Rouge, 119 F.3d
1259, 1263-1264
(CA6 1997);
Vasquez v.
Hernandez, 60 F.3d
325, 329
(CA7 1995);
Foster v.
Lake
Jackson, 28 F.3d
425, 429-431
(CA5 1994);
Williams v.
Boston, 784 F.2d
430, 435
(CA1 1986); Bell v.
Milwaukee, 746 F.2d
1205, 1260-1266
(CA7 1984);
Ryland v.
Shapiro, 708 F.2d
967, 974-975
(CA5 1983).
8 E. g., Smith v.
Bennett, 365 U. S. 708,713-714
(1961) (filing fee for habeas petitions);
Burns v.
Ohio, 360 U.
S. 252, 255-258 (1959) (fee for direct appeal in a criminal
case);
Mayer v.
Chicago, 404 U. S. 189, 195-196
(1971) (same, as to petty crime);
Griffin v.
Illinois, 351
U. S. 12, 16-20 (1956) (transcript fee for appellate review in
a criminal case).
414
be tried (or tried with all material evidence), no matter what
official action may be in the future.9 The official acts claimed to
have denied access may allegedly have caused the loss or inadequate
settlement of a meritorious case,
e. g.,
Foster v.
Lake Jackson, 28 F.3d
425, 429
(CA5 1994);
Bell v.
Milwaukee,
746 F.2d
1205, 1261
(CA7 1984) ("[T]he cover-up and resistance of
the investigating police officers rendered hollow [the plaintiff's]
right to seek redress"), the loss of an opportunity to sue,
e.
g., Swekel v.
River Rouge, 119 F.3d
1259, 1261
(CA6 1997) (police coverup extended
throughout "time to file suit ... under ... statute of
limitations"), or the loss of an opportunity to seek some
particular order of relief, as Harbury alleges here. These cases do
not look forward to a class of future litigation, but backward to a
time when specific litigation ended poorly,lO or could not have
commenced, or could have produced a remedy subsequently
unobtainable.ll The ultimate object of these sorts of access
claims, then, is not the judgment in a further lawsuit, but simply
the judgment in the access claim itself, in providing relief
obtainable in no other suit in the future.
While the circumstances thus vary, the ultimate justification
for recognizing each kind of claim is the same. Whether an access
claim turns on a litigating opportunity yet to be gained or an
opportunity already lost, the very point of recognizing any access
claim is to provide some ef-
9 All such cases have been decided in the Courts of Appeals, see
n. 7,
supra; we assume, without deciding, the correctness of
the decisions.
10 Some Courts of Appeals have held that an actual attempt to
sue is a prerequisite to any such claim. See
Delew, supra,
at 1222-1223;
Swekel, supra, at 1263-1264. See also App. to
Pet. for Cert. 46a (District Court adopting this requirement). But
cf.
Swekel, supra, at 1264, n. 2 ("We recognize that in some
instances it would be completely futile for a plaintiff to attempt
to access the state court system. The Plaintiff, however, has not
presented evidence that this is such a case").
11 Bifurcation into forward-looking and backward-looking access
claims is a simplification, and not the only possible
categorization, but it helps to focus the issues here.
415
fective vindication for a separate and distinct right to seek
judicial relief for some wrong. However unsettled the basis of the
constitutional right of access to courts, 12 our cases rest on the
recognition that the right is ancillary to the underlying claim,
without which a plaintiff cannot have suffered injury by being shut
out of court. We indicated as much in our most recent case on
denial of access,
Lewis v.
Casey, supra, where we
noted that even in forward-looking prisoner class actions to remove
roadblocks to future litigation, the named plaintiff must identify
a "nonfrivolous," "arguable" underlying claim,
id., at 353,
and n. 3, and we have been given no reason to treat
backward-looking access claims any differently in this respect. It
follows that the underlying cause of action, whether anticipated or
lost, is an element that must be described in the complaint, just
as much as allegations must describe the official acts frustrating
the litigation. It follows, too, that when the access claim (like
this one) looks backward, the complaint must identify a remedy that
may be awarded as recompense but not otherwise available in some
suit that may yet be brought. There is, after all, no point in
spending time and money to establish the facts constituting denial
of access when a plaintiff would end up just as well off after
litigating a simpler case without the denial-of-access element.
12 Decisions of this Court have grounded the right of access to
courts in the Article IV Privileges and Immunities Clause,
Chambers v.
Baltimore &
Ohio R. Co.,
207 U. S. 142,
148 (1907);
Blake v.
McClung, 172 U. S. 239, 249
(1898);
Slaughter-House Cases, 16 Wall. 36, 79 (1873), the
First Amendment Petition Clause,
Bill Johnson's Restaurants,
Inc. v.
NLRB, 461 U. S. 731, 741
(1983);
California Motor Transport Co. v.
Trucking
Unlimited, 404 U.
S. 508, 513 (1972), the Fifth Amendment Due Process Clause,
Murray v.
Giarratano, 492 U. S. 1, 11, n. 6
(1989) (plurality opinion);
Walters v.
National Assn. of
Radiation Survivors, 473 U. S. 305, 335
(1985), and the Fourteenth Amendment Equal Protection,
Pennsylvania v.
Finley, 481 U. S. 551, 557
(1987), and Due Process Clauses,
Wolff v.
McDonnell,
418 U. S. 539,
576 (1974);
Boddie v.
Connecticut, 401 U. S. 371, 380-381
(1971).
416
Like any other element of an access claim, the underlying cause
of action and its lost remedy must be addressed by allegations in
the complaint sufficient to give fair notice to a defendant. See
generally
Swierkiewicz v.
Sorema N.
A.,
534 U. S. 506,
513-515 (2002). Although we have no reason here to try to describe
pleading standards for the entire spectrum of access claims, this
is the place to address a particular risk inherent in
backward-looking claims. Characteristically, the action underlying
this sort of access claim will not be tried independently,13 a fact
that enhances the natural temptation on the part of plaintiffs to
claim too much, by alleging more than might be shown in a full
trial focused solely on the details of the predicate action.
Hence the need for care in requiring that the predicate claim be
described well enough to apply the "nonfrivolous" test and to show
that the "arguable" nature of the underlying claim is more than
hope.14 And because these backwardlooking cases are brought to get
relief unobtainable in other suits, the remedy sought must itself
be identified to hedge against the risk that an access claim be
tried all the way through, only to find that the court can award no
remedy that the plaintiff could not have been awarded on a
presently existing claim.
13 It may be the case that an underlying action has already been
tried to an inadequate result due to missing or fabricated evidence
in an official cover-up, see,
e. g., Foster,
28 F. 3d, at 427;
Bell, 746 F. 2d, at 1223, or the claim may
still be timely and subject to trial, but for a different remedy
than the one sought under the access claim, or against different
defendants.
14 The District of Columbia Circuit rejected the holding of some
Circuits, see n. 10,
supra, that a filed suit on the
underlying claim is a prerequisite for a backward-looking access
claim,
233 F.3d
596, 608-610 (2000), because it would foreclose access claims
in the most heinous cases where a cover-up was so pervasive that
any timely attempt to litigate would have seemed futile. In
essence, the Court of Appeals rejected a rule requiring an attempt
to litigate, even if frivolous, as a condition of bringing a
nonfrivolous backward-looking access claim.
417
The particular facts of this case underscore the need for care
on the part of the plaintiff in identifying, and by the court in
determining, the claim for relief underlying the access-to-courts
plea. The action alleged on the part of all the Government
defendants (the State Department and NSC defendants sued for denial
of access and the CIA defendants who would have been timely sued on
the underlying claim but for the denial) was apparently taken in
the conduct of foreign relations by the National Government. Thus,
if there is to be judicial enquiry, it will raise concerns for the
separation of powers in trenching on matters committed to the other
branches. See
Department of Navy v.
Egan, 484 U. S.
518, 529 (1988) (" '[F]oreign policy [is] the province and
responsibility of the Executive' ");
Chicago &
Southern Air Lines, Inc. v.
Waterman S. S.
Corp., 333 U.
S. 103, 111 (1948) ("[T]he very nature of executive decisions
as to foreign policy is political, not judicial"). Since the need
to resolve such constitutional issues ought to be avoided where
possible, cf.
Department of Housing and Urban Development v.
Rucker, 535 U.
S. 125, 134-135 (2002);
Ashwander v.
TV A,
297 U. S. 288,
345-348 (1936) (Brandeis, J., concurring), the trial court should
be in a position as soon as possible in the litigation to know
whether a potential constitutional ruling may be obviated because
the allegations of denied access fail to state a claim on which
relief could be granted.
In sum, the right of a defendant in a backward-looking access
suit to obtain early dismissal of a hopelessly incomplete claim for
relief coincides in this case with the obligation of the Judicial
Branch to avoid deciding constitutional issues needlessly. For the
sake of each, the complaint should state the underlying claim in
accordance with Federal Rule of Civil Procedure 8(a),15 just as if
it were being independently pursued, and a like plain statement
should describe any rem-
15 "A pleading which sets forth a claim for relief ... shall
contain ... a short and plain statement of the claim showing that
the pleader is entitled to relief .... "
418
edy available under the access claim and presently unique to
it.
B
Under these standards, Harbury's complaint did not come even
close to stating a constitutional claim for denial of access upon
which relief could be granted. While we cannot read the complaint
without appreciating Harbury's anguish, neither can we read it
without appreciating the position of the District Judge who
described Harbury's various requests for relief as "nearly
unintelligible." App. to Pet. for Cert. 32a. Although the counts
stating the
Bivens claim for denial of judicial access
seemed to confirm that Harbury intended to state a backward-looking
claim, the complaint failed to identify the underlying cause of
action that the alleged deception had compromised, going no further
than the protean allegation that the State Department and NSC
defendants' "false and deceptive information and concealment
foreclosed Plaintiff from effectively seeking adequate legal
redress." App. 50 (~175). The District Court and the defendants
were left to guess at the unstated cause of action supposed to have
been lost, and at the remedy being sought independently of relief
that might be available on the 24 other counts set out in the
complaint.
Nothing happened in the Court of Appeals to improve Harbury's
position. That court, too, was frustrated by the failure to
identify the predicate claim and the need for relief otherwise
unattainable,16 but it gave Harbury's counsel an opportunity at
oral argument to supply the missing allega-
16 The court repeatedly pressed counsel to identify the
underlying claim.
See Lodging for United States as
Amicus Curiae Supporting
Petitioners 7, 19,44,47 (respectively, "Now what would that
[predicate] lawsuit have looked like? ... Can you explain what that
lawsuit would look like? ... [A]ccess to do what[?] ... And what
would that lawsuit have looked like?" (Tr. of Proceedings in
Harbury v.
Deutch, No. 99-5307 (Sept. 8, 2000))).
419
tions. Counsel responded that Harbury would have brought an
action for intentional infliction of emotional distress 17 as one
wrong for which she could have sought the injunctive relief that
might have saved her husband's life:
"[I]f defendants had disclosed the information they possessed
about Bamaca, Harbury could have sought an emergency injunction
based on an underlying tort claim for intentional infliction of
emotional distress. Even if the NSC and State Department officials
had simply said they could not discuss Bamaca's situation, counsel
explained, Harbury would have filed her FOIA requests immediately,
thus perhaps obtaining the information necessary to seek an
injunction in time to save her husband's life. Instead, believing
defendants' reassurances, Harbury waited for the State Department
and NSC officials to complete their 'investigation.'" 233 F. 3d, at
609.
The Court of Appeals adopted this theory in saying that the
"adequate legal redress" alleged for purposes of Harbury's access
claims meant emergency injunctive relief in a now futile lawsuit
for intentional infliction of emotional distress,
17Whether the Court of Appeals should have extended that
opportunity is not an issue before us. We see counsel's answer as
amounting to an amendment of pleadings that still fails to cure the
inadequacy of the denial-of-access claim. In providing the
clarification, Harbury's counsel appears to have been referring to
the intentional-infliction counts against the CIA defendants
alleged elsewhere in her complaint, App. 55 (counts 18-19). See
infra, at 422. Whatever latitude is allowed by federal
notice pleading, no one says Harbury should be allowed to construe
"adequate legal redress" to mean causes of action that were not
even mentioned in her complaint. As for Harbury's position here,
suffice it to say that a brief to this Court, see Brief for
Respondent at 22-33 (listing causes of action that Harbury could
have brought in 1993), is not the place to supplement pleadings in
response to a motion in the trial court to dismiss for failure to
state a claim.
420
and it accepted this amendment as a sufficient statement of an
underlying cause of action.18
Ibid.
We think, however, that treating the amendment as an adequate
statement was error. For even on the assumption that Harbury could
surmount all difficulties raised by treating the underlying claim
as one for intentional infliction of emotional distress,19 she
could not satisfy the requirement
18 Harbury does not argue, based on her counsel's argument
before the Court of Appeals, that the allegation that official
deception delayed a Freedom of Information Act filing, which,
presumably, might have involved a lawsuit down the road if the
defendants obstructed compulsory disclosure, can independently
serve as an underlying cause of action for purposes of her access
claim.
19 Because the access claim as "amended" by Harbury's counsel at
argument still fails to indicate any remedy that would be available
in addition to potential relief on presently existing tort claims,
see
infra, at 422, it is unnecessary to resolve any of the
claim's other difficulties in satisfying the need for nonfrivolous
and arguable underlying causes of action. For example, Harbury
alleges no acts of concealment by NSC officials prior to her
husband's death; it would appear that the
Bivens access
claim should have been dismissed as to them on this ground alone.
Nor does Harbury allege a plausible causal link between an
injunction that might have been issued by a United States court and
the behavior of the Guatemalan military alleged to have killed
Harbury's husband. It is also uncertain whether the underlying
cause of action could be pursued consistently with respect for
separation of powers. And, of course, all of this assumes the
unlikely case that the Government would not certify the defendants'
action as exercises of their official capacity, or that if the
Government did, an action could be maintained under the Federal
Tort Claims Act. See 28 U. S. C. § 2680(h) (excluding certain
intentional torts including assault, battery, false imprisonment,
and misrepresentation); § 2680(k) (excluding claims arising in a
foreign country); cf.
United States v.
Shearer,
473 U. S. 52, 57
(1985) (no claim for negligent supervision of an employee resulting
in wrongful death in the military context). But see
U. S.
Information Agency v.
Krc, 989
F.2d 1211, 1216 (CADC 1993) ("injunctive relief is available"
under the Federal Tort Claims Act for an intentional-tort claim
when the statute bars a damages remedy), cert. denied, 510 U. S.
1109 (1994).
Indeed, even if Harbury's underlying claim could navigate these
concerns, it is not at all apparent that any or all of Harbury's
many factual allegations would make out a claim for intentional
infliction of emotional distress. As a general matter, "[w]here
[extreme and outrageous] conduct
421
that a backward-looking denial-of-access claim provide a remedy
that could not be obtained on an existing claim. We have no choice
but to assume that what Harbury intends to claim as intentional
infliction of emotional distress is set out in the counts of her
complaint naming the "CIA defendants," including the Guatemalan
officer who allegedly tortured and killed her husband, App. 55
(counts 18-19).20 These are among the tort counts that survived the
motion to dismiss under the portion of the District Court's order
not before us. If an intentional-infliction claim can be maintained
at all, Harbury can seek damages and even conceivably some sort of
injunctive relief for the demonstrated consequences of the
infliction alleged.21 It is true that she cannot obtain in any
present tort action the order she would have sought before her
husband's death, the order that might have saved her husband's
life. But neither can she obtain any such order on her access
claim, which therefore cannot recompense Har-
is directed at a third person, the actor is subject to liability
if he intentionally or recklessly causes severe emotional distress
to a member of such person's immediate family who is present at the
time, whether or not such distress results in bodily harm."
Restatement (Second) of Torts § 46(2)(a) (1965). It is unclear that
Harbury's allegations meet either the intent or the presence
requirements. While there is room to argue for an exception to
presence in some situations, cf.
Jenco v.
Islamic
Republic of Iran, 154 F. Supp. 2d 27, 33 (DC 2001) (allowing
publication to substitute for presence), far from there being any
allegation that the CIA defendants intended her husband's situation
to become known to the public, the entire thrust of Harbury's
pleadings is that every defendant tried to conceal it.
20 See n. 17,
supra. There is also an emotional-distress
count against the State Department and NSC defendants, but based on
their alleged deception, see App. 58 (count 23), that is, simply in
duplication of the acts alleged to constitute denial of access, not
on the acts underlying the predicate claim.
21 While Harbury, if otherwise successful, might obtain
injunctive relief requiring the CIA to reveal the location of her
husband's remains (if known), she could not get any injunction
against continued deception on the part of the State Department.
But this is irrelevant, since Harbury has given no indication that
she contemplates any future litigation to which continued deception
would be relevant; she has not, in other words, pleaded any
surviving, forward-looking access claim.
422
THOMAS, J., concurring in judgment
bury for the unique loss she claims as a consequence of her
inability to bring an intentional-infliction action earlier. She
has not explained, and it is not otherwise apparent, that she can
get any relief on the access claim that she cannot obtain on her
other tort claims, i.
e., those that remain pending in the
District Court. 22 And it is just because the access claim cannot
address any injury she has suffered in a way the presently
surviving intentional-infliction claims cannot23 that Harbury is
not entitled to maintain the access claim as a substitute,
backward-looking action.
The judgment of the Court of Appeals is reversed, and the case
is remanded for further proceedings consistent with this
opinion.
It is so ordered.
JUSTICE THOMAS, concurring in the judgment.
In
Lewis v.
Casey, 518 U. S. 343 (1996),
after a review of the constitutional text, this Court's precedent,
and tradition, I could find no basis "for the conclusion that the
constitutional right of access imposes affirmative obligations on
the States to finance and support prisoner litigation."
Id.,
at 384-385 (concurring opinion). Likewise, I find no basis in the
Constitution for a "right of access to courts" that effectively
imposes an affirmative duty on Government officials either to
disclose matters concerning national security or to provide
information in response to informal requests. Notwithstanding the
Court of Appeals' attempt to characterize
22 This might not be the case where, for example, the underlying
claim had been tried or settled for an inadequate amount given
official deception, see
Foster, 28 F. 3d, at 427;
Bell, 746 F. 2d, at 1223, and thus likely barred by res
judicata, or where the statute of limitations had run, see
Swekel, 119 F. 3d, at 1261.
23 If Harbury's existing tort claims should be dismissed for the
reasons identified in n. 19,
supra, or other reasons
unrelated to the alleged deception by the State Department
officials, she would still be unable to identify a predicate cause
of action necessary to state a backward-looking access claim.
423
the right of access differently, see
Harbury v.
Deutch, 233 F.3d
596, 611
(CADC 2000) (characterizing the right as "when
public officials affirmatively mislead citizens in order to prevent
them from filing suit"), I would decide this case solely on the
ground that no such right is implicated here. For that reason, I
concur in the judgment.
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