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; Williams, Ginsburg,

Sentelle, Henderson, Randolph, Rogers, Tatel and

Garland, Circuit Judges.

O R D E R

Appellees' petition for rehearing en banc and the response

thereto have been circulated to the full court. The taking of

a vote was requested. Thereafter, a majority of the judges of

the court in regular active service did not vote in favor of the

petition. Upon consideration of the foregoing, it is

ORDERED that the petition be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

A statement of Circuit Judge Henderson dissenting from

the denial of rehearing en banc, joined by Circuit Judge

Sentelle, is attached.

Circuit Judge Garland did not participate in this matter.

Karen LeCraft Henderson, Circuit Judge, with whom

Sentelle, Circuit Judge, joins, dissenting:

I dissent from the denial of rehearing en banc because

Harbury suffered no constitutional deprivation or, alternative-

ly, if she did, the individual defendants are entitled to quali-

fied immunity from liability therefor. As the panel opinion

notes, to state a claim Harbury must allege that the defen-

dants' misrepresentations and nondisclosures foreclosed her

" 'from effectively seeking adequate legal redress,' " Harbury

v. Deutch, 233 F.3d 596, 609 (D.C. Cir. 2000) (quoting Com-

plaint p 98). Yet Harbury has nowhere identified what "legal

redress" might have been adequate to save her husband.

Her claim on appeal that but for the government's deception

she "could have sought an emergency injunction based on an

underlying tort claim for intentional infliction of emotional

distress," id., does not fill the bill. No United States court

could reach the alleged tortfeasors, Guatemalan nationals on

Guatemalan soil, in order to prevent their killing Harbury's

husband, another Guatemalan national. While Harbury may

not be required to plead "a strict causal showing of exactly

what relief [she] would have obtained in court had defendants

not concealed the truth," she must nevertheless "establish

that the concealment 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). She has not. The only cause

is the absence of any effective relief. "I do not believe the

Court does a [party] a favor by giving it an opportunity to

expend resources in litigation that has no chance of success."

South Carolina v. Regan, 465 U.S. 367, 403 (1984) (Stevens,

J., dissenting).

Even had Harbury made a colorable claim, the individual

government defendants would be entitled to qualified immuni-

ty because reasonable officials in their positions could have

believed that under established law their actions did not

violate Harbury's constitutional right of access to the courts.

In cases from other circuits finding such a right was violated,

the plaintiffs alleged that the defendant state officials, police

officers or prosecutors, covered up murders by other such

officials in order to prevent the plaintiffs from pursuing

wrongful death actions. See, e.g., Bell, supra; Ryland v.

Shapiro, 708 F.2d 967, 972 (5th Cir. 1983). In this case, by

contrast, Harbury contends the National Security Council and

the State Department covered up her husband's captivity by

foreign nationals on foreign soil in order to keep her from

obtaining relief in a United States court that would prevent

her husband's subsequent murder on foreign soil at the hands

of the foreign nationals. The defendants plainly were not on

notice that such very different conduct might violate Har-

bury's right of access to the courts. See Butera v. District of

Columbia, 235 F.3d 637, 646 (D.C. Cir. 2001) ("A constitution-

al right was 'clearly established' at the time of the events in

question only if '[t]he contours of the right [were] sufficiently

clear that a reasonable officer would understand that what he

[was] doing violate[d] that right.' ") (quoting Anderson v.

Creighton, 483 U.S. 635, 640 (1987)) (citing Harris v. District

of Columbia, 932 F.2d 10, 13 (D.C. Cir. 1991); Martin v.

Malhoyt, 830 F.2d 237, 253 (D.C. Cir. 1987)).