536 U.S. 403 (2002), 01-394, Christopher v. Harbury

Docket Nº:No. 01-394
Citation:536 U.S. 403, 122 S.Ct. 2179, 153 L.Ed.2d 413, 70 U.S.L.W. 4614
Case Date:June 20, 2002
Court:United States Supreme Court

Page 403

536 U.S. 403 (2002)

122 S.Ct. 2179, 153 L.Ed.2d 413, 70 U.S.L.W. 4614




No. 01-394

United States Supreme Court

June 20, 2002

Argued March 18, 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 cover-up 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.


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

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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.

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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. 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

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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.


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).

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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...

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