Harbury, Jennifer K. v. Deutch, John M.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Filed April 6, 2001

No. 99-5307

Jennifer K. Harbury, on her own behalf and as

administratrix of the Estate of Efrain Bamaca-Velasquez

Appellant

v.

John M. Deutch, Director,

Central Intelligence Agency (CIA), et al.,

Appellees

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Before: Edwards, Chief Judge, Ginsburg and Tatel,

Circuit Judges.

O R D E R

Upon consideration of appellees' petition for rehearing filed

January 26, 2001, it is

ORDERED that the petition be denied.

The Government claims that the panel opinion "marks a

significant and potentially dangerous expansion of the consti-

tutional 'right of access' to the courts," creating an "open-

ended constitutional tort for every instance where a govern-

ment official conceals information, or obstructs a judicial

proceeding." Appellees' Petition for Reh'g at 1, 7. This is

incorrect. To begin with, as a procedural matter, the opinion

will not open the courts to a flood of constitutional access to

courts claims. It endorses the general requirement that

prior to bringing claims for deprivation of access to courts

based on alleged cover-ups, plaintiffs must first press their

underlying claims to ensure that the alleged cover-ups in fact

prejudiced their ability to seek relief. See Harbury v.

Deutch, 233 F.3d 596, 608-09 (D.C. Cir. 2000). The panel

opinion permits Harbury to bring her access to courts claim

now only because, if the facts she pleads are correct (this case

is here on a motion to dismiss), defendants' actions "complete-

ly foreclosed" one of her primary avenues of relief. Id at 609.

Moreover, as a substantive matter, the opinion distinguishes

Harbury's situation from those where a plaintiff, despite a

cover-up, has enough information to file a "John Doe" suit.

Id. at 609-10. It thus expresses no view on the constitution-

ality of cover-ups that do not "conceal[ ] most of the essential

facts" of a cause of action until bringing it would be "futile."

Id. (internal quotation marks omitted). In addition, and

most important, the opinion explicitly and repeatedly limits

its holding to situations where--as Harbury alleges--defen-

dants both affirmatively mislead plaintiffs and do so for the

very purpose of protecting government officials from suit.

See id. at 608, 610, 611.

The Government also alleges that cover-ups of the type

alleged here are sometimes "necessary in order to protect the

national security or to maintain the secrecy of classified

intelligence sources or methods." Appellees' Petition for

Reh'g at 2. Accordingly, the Government argues, the panel

opinion threatens to "jeopardize foreign intelligence sources

and implicate foreign relations." Id. As the opinion express-

ly points out, however, the Government never claimed, either

before the district court or the panel, that the cover-up

Harbury alleges was necessary to maintain national security.

See Harbury, 233 F.3d at 610. Having not yet filed an

answer in this case, the Government is free to assert a

national security defense when it does so.

Next, the Government claims that Harbury has failed to

"point to a colorable claim that has been prejudiced by the

alleged cover-up" and that "the injunctive action which was

allegedly thwarted is not even colorable." Appellees' Petition

for Reh'g at 9, 14. But Harbury specifically claimed in her

complaint that the alleged cover-up "foreclosed [her] from

effectively seeking adequate legal redress." See Complaint

p 98, cited in Harbury, 233 F.3d at 609. Such a "short and

plain statement of the claim," Fed. R. Civ. P. 8(a)(2), providing

sufficient information to allow a party to "frame a responsive

pleading," Fed. R. Civ. P. 12(e), is all the federal rules require.

See Carribean Broad. Sys., Ltd. v. Cable & Wireless PLC, 148

F.3d 1080, 1085-86 (D.C. Cir. 1998). Moreover, on appeal--

and without response from the Government--Harbury ampli-

fied this claim, explaining in her brief that if she had "learned

of her husband's situation while he was still alive, she would

have immediately initiated court proceeding[s] seeking emer-

gency injunctive relief." Appellant's Opening Brief at 35. At

oral argument, her counsel further explained that such an

injunction could have been based on an underlying claim for

intentional infliction of emotional distress. Harbury, 233

F.3d at 609. On a motion to dismiss, "the factual allegations

of the complaint must be taken as true, and any ambiguities

or doubts concerning the sufficiency of the claim must be

resolved in favor of the pleader," Doe v. United States Dept.

of Justice, 753 F.2d 1092, 1102 (D.C. Cir. 1985), and Har-

bury's proposed action for injunctive relief to save her hus-

band's life is on its face colorable. See Harbury v. Deutch,

No. 96-00438 at 27-28 (D.D.C. Mar. 23, 1999) (denying the

Government's motion to dismiss Harbury's tort claims). On

remand, it is certainly open to the Government to argue--if

the record as it is developed so allows--that Harbury's

hypothetical injunctive action would have been so unlikely to

succeed that she cannot plausibly claim that defendants'

alleged cover-up was a "substantial cause of [her] failure to

obtain judicial relief." Bell v. City of Milwaukee, 746 F.2d

1205, 1263 n.72 (7th Cir. 1984).

Our dissenting colleagues suggest that "[n]o United States

court could reach the alleged tortfeasors, Guatemalan nation-

als on Guatemalan soil, in order to prevent their killing

Harbury's husband, another Guatemalan national." Harbury

v. Deutch, No. 99-5307, slip op. dissent at 1 (Henderson, J.,

dissenting from denial of rehearing en banc). But as the

intentional infliction of emotional distress claims Harbury also

pleaded in her complaint demonstrate, see Harbury, 233 F.3d

at 600, the alleged tortfeasors here were domestic: the

government officials who allegedly conspired with, collaborat-

ed with, directed, and paid Bamaca's torturers. See Com-

plaint at p 200 ("The CIA Defendants' collaborating and/or

conspiring with and/or directing Julio Roberto Alpirez and/or

others who intentionally and secretly imprisoned, tortured

and extrajudicially executed Mr. Bamaca constituted extreme

and outrageous conduct."). Harbury's complaint also sug-

gests that in her action for intentional infliction of emotional

distress, she could have alleged injury not just to Bamaca, but

also to herself; in other words, Harbury, a United States

citizen, could have sought relief in a United States court on

her own behalf against United States government officials.

See Complaint at p 201 ("This extreme and outrageous con-

duct was engaged in intentionally or recklessly and caused

both Mr. Bamaca and Plaintiff to endure severe physical and

emotional distress."). As Harbury explains in her response

to the Government's petition, an injunctive action against

these officials might have saved Bamaca's life by enjoining

them from "directing, conspiring in, and paying for the con-

tinued secret detention and torture of her husband, and

direct[ing] [them] to require the assets on the payroll to stop

engaging in such behavior." Appellant's Response to Petition

for Reh'g at 9. As we stated earlier, the Government is free

to argue on remand that, either because of the nature (or

absence) of the relationship between Bamaca's torturers and

the CIA defendants, or for some other reason, the chances of

this happening were too remote to justify awarding Harbury

relief.

The Government next suggests that it is unclear "what

legal liability the State Department and NSC officials were

attempting to avoid," since "[Harbury's] state law tort claims

regarding the torture of her husband are all directed at the

CIA defendants." Appellees' Petition for Reh'g at 11. But

access to courts claims are not restricted to cases in which

officials are alleged to have covered up their own illegal

actions, and the Government itself acknowledges that two of

the cases it cites, Bell, 746 F.2d at 1256-58, and Ryland v.

Shapiro, 708 F.2d 967, 969 (5th Cir. 1983), involve cover-ups

of "coworkers' wrongdoing." See Appellees' Petition at 7.

Here, Harbury alleges that all three defendant agencies

worked together to conceal Bamaca's capture and torture in

order to obtain the maximum amount of information from

him. See Complaint at p 167 ("[State and NSC defendants]

have a long-standing policy, pattern or practice of providing

false information, through fraudulent statements and inten-

tional omissions, as to the fate of anyone injured or killed

through the CIA's long-standing policy, pattern or practices

related to the extraction of information."); id. at p 67, quoted

in Harbury, 233 F.3d at 600 ("[State and NSC defendants]

intentionally misled [Harbury] ... because they did not want

to threaten their ability to obtain information from Mr.

Bamaca."). Moreover, after their initial cover-up of Bamaca's

capture, State and NSC defendants themselves might have

been subject to direct tort liability for their alleged conceal-

ment and misrepresentation. See Complaint at p p 217-37

(stating tort claims against these defendants for intentional

infliction of emotional distress, intentional misrepresentation,

negligent misrepresentation, and constructive fraud). In al-

legedly deceiving Harbury, they thus might have been at-

tempting to avoid their own legal liability as well.

As to Harbury's allegations of defendants' intent, although

the Government is correct that under Crawford-El v. Britton,

523 U.S. 574, 598 (1998), a district court can require a plaintiff

to support her complaint with "specific, nonconclusory factual

allegations," Appellees' Petition for Reh'g at 11, the district

court here did this only with respect to Harbury's conspiracy

allegations against the CIA defendants--not with respect to

Harbury's access to courts claim. Harbury v. Deutch, No.

96-00438 at 5 (D.D.C. July 20, 1998) (order requiring plaintiff

to "put forward specific, nonconclusory factual allegations

that establish improper motive" of CIA defendants). More-

over, Harbury expressly alleged that "internal [State and

NSC] memoranda" reveal the defendants' intent to mislead

Harbury. Harbury, 233 F.3d at 600.

Finally, with respect to the Government's qualified immu-

nity arguments, neither the fact that defendants did not "fa-

bricat[e] evidence," Appellees' Petition for Reh'g at 14, nor

the fact that the alleged torture occurred outside the United

States is enough to entitle the defendants to qualified immu-

nity. Under Anderson v. Creighton, the "very action in

question" need not have been previously held unlawful;

rather, the law need only allow officials " 'reasonably [to] an-

ticipate when their conduct may give rise to liability for

damages.' " 483 U.S. 635, 639-40 (1987) (quoting Davis v.

Scherer, 468 U.S. 183, 195 (1984)). Here, defendants alleg-

edly acted affirmatively to mislead Harbury and did so with

a specific intent to deny her access to a federal court.

Under existing caselaw, such action was clearly unconstitu-

tional. See Delew v. Wagner, 143 F.3d 1219, 1222 (9th Cir.

1998) (following the Sixth Circuit and stating that "the Con-

stitution guarantees plaintiffs the right of meaningful access

to the courts, the denial of which is established where a

party engages in pre-filing actions which effectively covers-

up evidence and actually renders any state court remedies

ineffective"); Swekel v. City of River Rouge, 119 F.3d 1259,

1262 (6th Cir. 1997) ("if a party engages in actions that

effectively cover-up evidence ... they have violated his right

of access to the courts"); Vasquez v. Hernandez, 60 F.3d

325, 328 (7th Cir. 1995) ("[E]fforts by state actors to impede

an individual's access to courts ... may provide the basis for

a constitutional claim under 42 U.S.C. s 1983."); Crowder v.

Sinyard, 884 F.2d 804, 812 (5th Cir. 1989) ("[I]f state offi-

cials wrongfully and intentionally conceal information crucial

to a person's ability to obtain redress through the courts,

and do so for the purpose of frustrating that right, and that

concealment and the delay engendered by it substantially

reduce the likelihood of one's obtaining the relief to which

one is otherwise entitled, they may have committed a consti-

tutional violation."); Ryland, 708 F.2d at 973 (constitutional

right of access violated where "agents of the state intention-

ally engaged in conduct that interfered with [the] exercise of

[the] constitutionally protected right to institute a wrongful

death suit"); cf. Barrett v. United States, 798 F.2d 565, 575

(2d Cir. 1986) ("[G]overnment officials," though "not under

any duty to volunteer to [plaintiff] information that would

alert it to the existence of a claim against the federal gov-

ernment and certain of its officials for ... wrongful death,"

"[o]n the other hand ... were not free to arbitrarily inter-

fere with [plaintiff's] vindication of its claims. Unconstitu-

tional deprivation of a cause of action occurs when govern-

ment officials thwart vindication of a claim by violating basic

principles that enable civil claimants to assert their rights

effectively.").

In arguing that defendants are entitled to qualified immuni-

ty, our dissenting colleagues again rely on the notion that the

tortfeasors here are foreign nationals: they suggest that

reasonable officials could have thought it constitutional to

cover up Bamaca's "captivity by foreign nationals on foreign

soil in order to keep [Harbury] from obtaining relief in a

United States court that would prevent her husband's subse-

quent murder on foreign soil at the hands of the foreign

nationals." Harbury, No. 99-5307, slip op. dissent at 2. But

again, Harbury does not allege that defendants violated her

right of access to courts by covering up the actions of foreign

nationals unassociated with the United States government.

Rather, she alleges that defendants are liable for misleading

her about the involvement of United States government offi-

cials who allegedly "engaged in, directed, collaborated and

conspired in, and otherwise contributed to" Bamaca's torture

and murder. See Complaint at p 49, quoted in Harbury, 233

F.3d at 599. Similarly, the legal liability defendants allegedly

intended to avoid was not the liability of Guatemalan nation-

als unassociated with the United States government, but

rather the liability of fellow United States Government offi-

cials for their involvement in Bamaca's torture.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk