Broudy, Alice P. v. Mather, Susan H.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 6, 2005 Decided August 23, 2006

No. 05-5085

ALICE P. BROUDY, ET AL.,

APPELLANTS

v.

SUSAN H. MATHER, IN HER INDIVIDUAL AND OFFICIAL

CAPACITIES, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 02cv02122)

David J. Cynamon argued the cause for appellants. With

him on the briefs was Douglas J. Rosinski.

Charles W. Scarborough, Attorney, U.S. Department of

Justice, argued the cause for appellees. With him on the brief

were Peter D. Keisler, Assistant General Counsel, Kenneth L.

Wainstein, U.S. Attorney, and Barbara L. Herwig, Attorney.

Before: GARLAND, BROWN and GRIFFITH, Circuit Judges.

Opinion for the court filed by Circuit Judge GRIFFITH.

2

GRIFFITH, Circuit Judge: Between 1945 and 1962, hundreds

of thousands of members of the United States armed forces were

allegedly exposed to dangerous levels of atomic radiation:

about 220,000 while serving as occupying forces in Hiroshima

and Nagasaki, Japan at the end World War II and another

195,000 as a result of their participation in tests conducted more

recently by the military closer to home. Many of these soldiers

later became sick, and they sought to link their health problems

to their military service. But this case is not about whether they

should have received Government compensation for their

sicknesses. Rather, according to the plaintiffs’ complaint, it is

about whether Government officials denied them a

constitutional right of meaningful access to administrative

proceedings before the Department of Veterans Affairs (“VA”).

We conclude that the District Court was correct to dismiss

the plaintiffs’ claims. Plaintiffs cannot prove any set of facts

consistent with the allegations of their complaint that will

demonstrate that the defendants denied them a meaningful

opportunity to pursue their claims for compensation.

I.

Because we are reviewing the District Court’s decision to

dismiss the plaintiffs’ complaint, we must presume the

allegations in the complaint are true. Doe v. Dep’t of Justice,

753 F.2d 1092, 1102 (D.C. Cir. 1985). We set forth those

allegations below.

Following the 1945 atomic bombings of Hiroshima and

Nagasaki, hundreds of thousands of American troops entered

Japan as occupying forces. Beginning that same year and

continuing through 1962, the United States tested atomic

weapons in New Mexico, Nevada, and the Pacific Ocean. One

purpose of the tests was to determine the effects of atomic

3

explosions on military operations, personnel, and equipment.

Participants were ordered to engage in a series of dangerous

activities, without full knowledge of the risks. For example,

plaintiffs allege that they were ordered to “board grossly

contaminated naval vessels within a few hours of a nearby

underwater atomic detonation; swim and dive in a lagoon . . .

contaminated with radioactive fallout . . . ; live and work on

ships . . . grossly contaminated with radioactive material . . . ; lie

in open trenches within a few hundred yards of an atomic

explosion; charge directly towards and through ‘ground zero’

within minutes of an atomic explosion; conduct extended

training in areas contaminated by fallout from dozens of atomic

detonations; and fly through roiling clouds of radioactive debris

within minutes of an atomic detonation.” Both groups—those

who served as occupation forces in Japan and those who

participated in military tests—were exposed to potentially

dangerous levels of atomic radiation.

During this period, the military performed medical tests on

many, if not all, of these veterans. Records of these tests

accurately describe the levels of radiation to which each veteran

was exposed. Sometime after the Government collected the data

from these tests—it is unclear from the complaint exactly

when—the nine named plaintiffs (or the survivors of these

plaintiffs)1 became sick and eight of the nine filed applications

for benefits with the VA2. The ninth plaintiff, Kathy

1

The complaint named ten plaintiffs, but one, Theodore J.

Dvorak, did not file a notice of appeal and his claims are not before us.

2

A veteran who becomes ill can file an application for

benefits with the VA. Sections 1110 and 1131 of Title 38, United

States Code, provide that, subject to certain conditions not relevant

here, the VA will pay compensation to veterans “[f]or disability

resulting from personal injury suffered or disease contracted in line of

4

Jacobovitch, has not yet filed a claim on behalf of her deceased

father. Upon receiving plaintiffs’ applications, the VA, in

accordance with its regulations, see 38 C.F.R. § 3.311(a)(1),

(a)(2)(I), (a)(2)(ii),3 requested the test results for these plaintiffs

duty, or for aggravation of a preexisting injury suffered or disease

contracted in line of duty.” 38 U.S.C. § 1110 (emphasis added)

(describing the Government’s obligation to compensate wartime

veterans), § 1131 (emphasis added) (describing the Government’s

obligation to compensate peacetime veterans). The standard for

determining whether a veteran’s survivor is entitled to benefits is

similar: “When any veteran dies after December 31, 1956, from a

service-connected or compensable disability, the Secretary shall pay

dependency and indemnity compensation to such veteran’s surviving

spouse, children, and parents.” Id. § 1310(a) (emphasis added).

3

These subsections provide, in relevant part:

(a) Determinations of exposure and dose—

(1) Dose assessment. In all claims in which it is

established that a radiogenic disease first became

manifest after service and was not manifest to a

compensable degree within any applicable

presumptive period as specified in § 3.307 or § 3.309,

and it is contended the disease is a result of exposure

to ionizing radiation in service, an assessment will be

made as to the size and nature of the radiation dose or

doses. . . .

(2) Request for dose information. Where necessary

pursuant to paragraph (a)(1) of this section, dose

information will be requested as follows:

(i) Atmospheric nuclear weapons test participation

claims. In claims based upon participation in

atmospheric nuclear testing, dose data will in all

cases be requested from the appropriate office of the

Department of Defense.

5

from the Department of Defense (“DoD”). But DoD never gave

these results to the VA. According to the plaintiffs, the

defendants intentionally covered them up.

In lieu of the actual test results, the DoD sent the VA “dose

reconstructions” for each of the plaintiffs, which it is required to

do when records of test results are unavailable. 32 C.F.R.

§ 218.1(d)(3). The DoD and the VA use dose reconstructions to

approximate a veterans’ level of exposure to radiation by

estimating the “size, type, design, and yield of the particular

atomic device; [the] time, distance, and shielding from the

detonation; the decay, distribution, and deposition of over 200

different radionuclides and fission products; and the potential

radiation exposure pathways.” Joint Appendix (“J.A.”) 32.

According to the plaintiffs, dose reconstructions are seriously

flawed. They minimize the veteran’s level of exposure by

assuming, for example, that all who worked in contaminated

areas wore protective clothing, even though photographs

evidence that was not so. Consequently, they “produce[] results

having little, if any, relation to the radiation dose actually

received by the individual.”

Using these allegedly faulty dose reconstructions, VA

officials concluded that six of the eight plaintiffs who have filed

a claim had not demonstrated that their illnesses “resulted from

exposure to radiation in service,” 38 C.F.R. § 3.311(c)(1)(I),

and, as a result, rejected (or partially rejected) their claims. The

VA has yet to rule on the claims of the two other plaintiffs who

(ii) Hiroshima and Nagasaki occupation claims. In

all claims based on participation in the American

occupation of Hiroshima or Nagasaki, Japan, prior to

July 1, 1946, dose data will be requested from the

Department of Defense.

6

have filed applications for benefits. As mentioned, the ninth

plaintiff, Kathy Jacobovitch, has not yet filed a claim. She

intends to do so when she obtains the actual dosage records.

In 2002, the plaintiffs filed a putative class action lawsuit in

the District Court against two groups of Government officials.

The first group consisted of officials who allegedly covered up

the actual dosage data: Steven M. Younger, the Director of the

Defense Threat Reduction Agency (“DTRA”), the agency within

the Department of Defense with responsibility for preparing the

dose reconstructions; Michael Schaeffer, a program manager in

the DTRA’s Technology Development Directorate; and other

unnamed Government officials. The second group consisted of

officials who allegedly assisted in the cover-up and knowingly

used the flawed dose reconstructions: Susan Mather, the VA’s

Chief Public Health and Environmental Hazards Officer; Neil

Otchin, the VA’s Clinical Matters Program Chief; Robert

Roswell, the VA’s Under Secretary for Health; and other

unnamed Government officials. The complaint alleged that both

groups of defendants have violated the plaintiffs’ constitutional

right of access to the courts. In the plaintiffs’ view, this right of

access extends to veterans benefits proceedings and prohibits

officials from acting in a way that either blocks or makes

meaningless access to those proceedings. As relief, plaintiffs

sought (1) a declaration that the actions taken by the defendants

were unconstitutional, (2) immediate release of all relevant

records and documents, (3) an injunction prohibiting the

defendants from withholding records of actual dosage data, (4)

compensatory and punitive damages, (5) costs and reasonable

attorneys’ fees, and (6) additional relief as the District Court

deemed proper and just.

The defendants moved to dismiss the plaintiffs’ claims and

made three arguments relevant here. First, they argued that the

District Court did not have jurisdiction to hear plaintiffs’ claims

7

because 38 U.S.C. § 511(a) provides that only the Board of

Veterans’ Appeals, the Court of Appeals for Veterans’ Claims,

the Federal Circuit, and the United States Supreme Court have

jurisdiction to “review” “decision[s] of the Secretary [of the

VA] as to” any “question of law [or] fact necessary to a decision

by the Secretary under a law that affects the provision of

benefits.” Second, the defendants argued that a claim for

damages against the Government officials under the Supreme

Court’s decision in Bivens v. Six Unknown Named Agents of the

Federal Bureau of Narcotics, 403 U.S. 388, 396 (1971), should

have been barred in this case because Congress has already

created a comprehensive administrative scheme to compensate

veterans. Third, the defendants argued that they were entitled to

qualified immunity because the allegations in the plaintiffs’

complaint failed to state a constitutional claim for denial of

access.

The District Court held it lacked jurisdiction under 38

U.S.C. § 511(a). As an alternative ground, the District Court

held that plaintiffs were barred from bringing a Bivens claim for

damages against the Government officials.

A few days before the District Court issued its decision,

another District Court in this Circuit reached opposite

conclusions in a case involving substantially similar facts and

legal issues. Vietnam Veterans of Am., Inc. v. McNamara, No.

02-2123, 2003 WL 24063631 (D.D.C. Sept. 30, 2003). The

Vietnam Veterans Court held that § 511(a) posed no

jurisdictional bar to its hearing the denial-of-access claims

raised by the plaintiffs in that case and that plaintiffs in that case

had stated a claim for relief under Bivens. Id. at *4-6. In light

of the contrary decision in Vietnam Veterans, the plaintiffs in

this case moved for reconsideration. The District Court granted

the motion and held, consistent with Vietnam Veterans, that

neither § 511(a) nor Bivens barred the plaintiffs’ pursuit of

8

denial-of-access claims. Broudy v. Mather, 335 F. Supp. 2d 1,

4-6 (D.D.C. 2004).

But that was not the end of the matter. After the District

Court’s decision on reconsideration, the defendants filed a

“Motion for Ruling on Defense of Qualified Immunity”

reminding the District Court that the defendants had also sought

to dismiss the complaint based upon qualified immunity.

Additionally, the defendants argued, for the first time, that they

were entitled to absolute immunity. The District Court agreed

and dismissed the case, holding that the defendants enjoyed both

qualified and absolute immunity: absolute immunity because

they “‘perform[ed] functions closely associated with the judicial

process’” Broudy v. Mather, 366 F. Supp. 2d 3, 9, 11 (D.D.C.

2005) (quoting Cleavinger v. Saxner, 474 U.S. 193, 200 (1985)),

and qualified immunity because the plaintiffs had failed to

allege a violation of a clearly established constitutional right, id.

at 11-13.

Plaintiffs filed a timely notice of appeal. They argue that

the defendants were not entitled to either qualified or absolute

immunity. The defendants respond that both immunities apply,

the District Court did not have jurisdiction to hear the case under

38 U.S.C. § 511(a), and, in any event, the plaintiffs failed to

state a claim under Bivens because “special factors counsel

hesitation” towards imposing liability for the type of denial of

access the plaintiffs allege.

II.

We begin, as we must, with the question whether the

District Court had jurisdiction to consider the plaintiffs’ claims.

See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94

(1998) (holding that courts must first decide “as a threshold

matter” whether there is jurisdiction to hear a case). In their

9

complaint, the plaintiffs asserted that the District Court had

jurisdiction pursuant to the general federal question jurisdiction

statute, 28 U.S.C. § 1331, which provides that “[t]he district

courts shall have original jurisdiction of all civil actions arising

under the Constitution, laws, or treaties of the United States.”

The defendants argue, however, that another statute, 38 U.S.C.

§ 511(a), barred the District Court from hearing the plaintiffs’

claims. Section 511(a) states:

The Secretary [of Veterans Affairs] shall decide

all questions of law and fact necessary to a

decision by the Secretary under a law that affects

the provision of benefits by the Secretary to

veterans or the dependents or survivors of

veterans. Subject to subsection (b), the decision

of the Secretary as to any such question shall be

final and conclusive and may not be reviewed by

any other official or by any court, whether by an

action in the nature of mandamus or otherwise.

38 U.S.C. § 511(a).4

4

Subsection (b) provides four exceptions, none of which

would allow a federal district court to review the kind of decisions of

the Secretary at issue here. The first exception gives the Federal

Circuit jurisdiction over Administrative Procedure Act review of VA

rulemaking. 38 U.S.C. § 511(b)(1). The second gives federal district

courts jurisdiction over suits involving Veterans’ Group Life

Insurance, National Service Life Insurance, and U.S. Government life

insurance. Id. § 511(b)(2). The third gives federal district courts

jurisdiction over suits involving VA housing and small business loans.

Id. § 511(b)(3). The fourth, id. § 511(b)(4), allows veterans or their

dependents or survivors to appeal adverse decisions to the Board of

Veterans’ Appeals, id. § 7104(a), then to the Court of Appeals for

Veterans’ Claims, id. § 7252(a), and then to the Federal Circuit, id.

§ 7292(c). Finally, if the Federal Circuit denies their claims, veterans

10

In the defendants’ view, § 511(a) prevents a district court

from exercising jurisdiction over any case that would require it

to decide a “question of law [or] fact” that arises “under a law

that affects the provision of benefits.” Put another way, the

defendants argue that § 511(a) gives the Secretary exclusive

jurisdiction to decide these questions. Because the plaintiffs’

denial-of-access claims would require the District Court to

decide factual and legal issues regarding the provision of

veterans benefits, the defendants contend that § 511(a) should

have prevented the District Court from exercising jurisdiction

over such claims.

This argument misreads the statute. Section 511(a) does not

give the VA exclusive jurisdiction to construe laws affecting the

provision of veterans benefits or to consider all issues that might

somehow touch upon whether someone receives veterans

benefits. Rather, it simply gives the VA authority to consider

such questions when making a decision about benefits, see

§ 511(a) (“[t]he Secretary shall decide all questions of law and

fact necessary to a decision by the Secretary under a law that

affects the provision of benefits by the Secretary to veterans or

the dependents or survivors of veterans”), and, more importantly

for the question of our jurisdiction, prevents district courts from

“review[ing]” the Secretary’s decision once made, see id.

(except as provided by subsection (b), “the decision of the

Secretary as to any such question shall be final and conclusive

and may not be reviewed by any other official or by any court”)

(emphasis added).

Our precedent, although not addressed by the plaintiffs,

provides as much. In McKelvey v. Turnage, 792 F.2d 194 (D.C.

Cir. 1986), aff’d on other grounds, Traynor v. Turnage, 485 U.S.

535 (1988), we held that § 211(a), the predecessor to § 511(a),

or their dependants can petition the Supreme Court for certiorari. Id.

11

did not bar a District Court suit challenging the legality of

certain VA regulations because the Secretary had not actually

decided the issue before the District Court.5 In that case, a

veteran named James McKelvey asked the VA for an extension

to the limitations period for filing for educational assistance

benefits. VA regulations allow for extensions for veterans who

were unable to use their benefits within ten years of their

discharge from the armed services “because of a physical or

mental disability which was not the result of such veteran’s own

willful misconduct.” Id. at 196 (citing 38 U.S.C. § 1662(a)(1)

(1982)). McKelvey argued that his limitations period should

have been extended because he was an alcoholic. Id. The VA

refused, citing a regulation that describes most forms of

alcoholism as a “result of willful misconduct.” Id. at 197.

McKelvey sued, arguing that the VA’s regulation was illegal

under the Rehabilitation Act, which he argued prohibits

discrimination on the basis of alcoholism. In response, the VA

argued that § 211(a) barred the district court from exercising

jurisdiction.

We rejected the VA’s argument, holding that § 211(a) did

not preclude review because

5

Section 211(a), formerly codified at 38 U.S.C. § 211(a)

(1982), read in pertinent part:

[T]he decisions of the Administrator [of the Veteran’s

Administration] on any question of law or fact under

any law administered by the Veteran’s

Administration providing benefits for veterans and

their dependants or survivors shall be final and

conclusive and no other official or any court of the

United States shall have power or jurisdiction to

review any such decision by an action in the nature of

mandamus or otherwise.

12

the VA itself had never decided the question

McKelvey’s Rehabilitation Act plea raises . . . .

Section 211(a) preclusion of review depends, at

a minimum, on the satisfaction of this condition:

the petitioner’s claim must have been resolved

by an actual decision of the Administrator. At

the time of the initiation of this suit, the

Administrator had made no decision concerning

the impact of the Rehabilitation Act on

McKelvey’s time extension application.

Id. at 198 (emphasis added; quotation marks and citation

omitted).

More recently, although again not brought to our attention

by the plaintiffs, the Federal Circuit has similarly rejected the

defendants’ argument of exclusive VA jurisdiction where a

claim is otherwise properly presented in the District Court but

somehow involves a law affecting the provision of benefits. In

Hanlin v. United States, 214 F.3d 1319 (Fed. Cir. 2000), a

veteran and his lawyer executed a written fee arrangement, a

copy of which had been sent to the Secretary, which provided

that the lawyer would receive twenty percent of any benefits

awarded to the veteran and authorized the Secretary to pay the

fee directly to the law firm. The VA, however, mistakenly sent

all the benefits to the veteran. Id. at 1320. Apparently unable

to collect from his client, the lawyer sued the VA in the Court of

Federal Claims arguing that the fee agreement created an

implied-in-fact contract with the United States. The Court of

Federal Claims held that it lacked jurisdiction under § 511(a)

because the claim arose under “a law that affects the provision

of benefits” and therefore could have been decided only by the

VA in a benefits proceedings. Id. at 1320-21. The Federal

Circuit rejected this reasoning, reversed the trial court, and

13

remanded the case so that the lawyer could pursue his claim

against the VA in federal court:

We do not read the statute to require the

Secretary, and only the Secretary, to make all

decisions related to laws affecting the provision

of benefits. Rather, once the Secretary has been

asked to make a decision in a particular case . . . ,

38 U.S.C. § 511(a) imposes a duty on the

Secretary to decide all questions of fact and law

necessary to a decision in that case. Although

Mr. Hanlin’s claim arises under 38 U.S.C.

§ 5904(d), which is ‘a law that affects the

provision of benefits’ within the meaning of 38

U.S.C. § 511(a), there is no language in 38

U.S.C. § 511(a) requiring an attorney in Mr.

Hanlin’s position to file a claim for fees pursuant

to 38 U.S.C. § 5904(d) with the VA or to

otherwise pursue a remedy through the VA

administrative process. Therefore, 38 U.S.C.

§ 511(a) does not require the Secretary to

address such a claim and thus does not provide

the VA with exclusive jurisdiction over Mr.

Hanlin’s claim.

Id. at 1321 (emphases added and internal citation omitted).

These cases make clear that, while the Secretary is the sole

arbiter of benefits claims and issues of law and fact that arise

during his disposition of those claims, district courts have

jurisdiction to consider questions arising under laws that affect

the provision of benefits as long as the Secretary has not actually

decided them in the course of a benefits proceeding. As the

Federal Circuit stated in Hanlin, we “do not read the statute to

require the Secretary, and only the Secretary, to make all

14

decisions related to laws affecting the provision of benefits.” Id.

(emphasis added). To the contrary, § 511(a) prevents district

courts from hearing a particular question only when the

Secretary has “actual[ly] deci[ded]” the question. McKelvey,

792 F.2d at 198. Where there has been no such decision,

§ 511(a) is no bar. Id.

We are thus left with the question whether the Secretary has

made an “actual decision” on any issues that the parties are

asking the District Court to decide here. The defendants’ brief

points only to two such questions: (1) “whether the information

allegedly withheld impaired or foreclosed” the veterans benefits

claims, and (2) “whether the radiation dosage exposure

estimates produced by the DTRA defendants and relied upon by

the VA defendants fail to consider relevant information in the

federal government[’s] [sic] possession [but that the Secretary

did not have] and produce scientifically baseless and erroneous

results.” Appellees’ Br. at 25 (quotation marks and citation

omitted). But the Secretary has never decided these questions.

No one argues that they were briefed and argued before the

Secretary. Nor does anyone argue that the Secretary explicitly

considered them when he denied the claims of six of the nine

plaintiffs. The defendants argue only that the Secretary should

be deemed to have decided all issues that could have affected the

outcome of the underlying benefits proceeding, even if those

issues were not explicitly raised before him. To support their

argument, the defendants rely on statements taken from two of

our cases, Price v. United States, 228 F.3d 420 (D.C. Cir. 2000),

and Thomas v. Principi, 394 F.3d 970 (D.C. Cir. 2005).

In Price, a veteran alleged that the VA had “wrongfully

failed to reimburse him for certain medical expenses.” 228 F.3d

at 421. We held that § 511(a) barred the District Court from

hearing this claim because, in order for the court to decide the

issue presented—whether the VA wrongfully failed to reimburse

15

Price—it would have needed to decide that he was entitled to

reimbursement in the first place. But the Secretary, in the

benefits proceeding, had already decided that Price was not

entitled to benefits. We held, therefore, that § 511(a) precluded

the District Court from hearing the veteran’s claim because it

would require the Court to review the Secretary’s decision. Id.

We then stated—and this is the language the defendants’ focus

upon—that “[b]ecause a determination whether the VA acted in

bad faith or with negligence would require the district court to

determine first whether the VA acted properly in handling

Price’s request for reimbursement, judicial review is foreclosed

by 38 U.S.C. § 511(a).” Id. at 422 (emphasis added).

We used that language again last year in Thomas. Thomas

claimed that the VA had “failed to render [to him] appropriate

medical care services” and had also “den[ied] [him] needed . . .

medical care treatment . . . [,] caus[ing] [him] severe emotional

distress.” Thomas, 394 F.3d at 975. We held that the District

Court was without jurisdiction to hear these claims because they

would have required it to decide whether Thomas was entitled

to medical treatment in the face of a prior VA determination that

he was not. Id. Because the review of these decisions was

explicitly prohibited by § 511(a), we dismissed these claims. Id.

We quoted from Price, stating that our task was to “determine

whether adjudicating Thomas’s claims would require the district

court ‘to determine first whether the VA acted properly in

handling’ Thomas’s benefits request.” Id. at 974 (quoting Price,

228 F.3d at 422) (emphasis added).

The defendants, trying to claim the benefit of our decisions

in Price and Thomas, argue that if the District Court exercises

jurisdiction here, it would need to determine whether the VA

“acted properly” in handling the claims of at least those

plaintiffs who were denied full benefits, something forbidden by

§ 511(a). Not so. In Price and Thomas, if the District Court had

16

exercised jurisdiction, it would have needed to “review” the

Secretary’s “actual decisions” that veterans were not entitled to

the benefits they sought. Here, by contrast, no such “review” is

required. Unlike the plaintiffs in Price and Thomas, the

plaintiffs in this case are not asking the District Court to decide

whether any of the veterans whose claims the Secretary rejected

are entitled to benefits. Nor are they asking the District Court to

revisit any decision made by the Secretary in the course of

making benefits determinations. The Secretary never considered

or decided the two issues the defendants focus upon—“whether

the information allegedly withheld impaired or foreclosed” the

veterans benefits claims and “whether the radiation dosage

exposure estimates . . . fail to consider relevant information” that

the Secretary did not have. It can therefore hardly be said that

these issues were “necessary to a decision by the Secretary.” 38

U.S.C. § 511(a). The “acted properly” language in Price and

Thomas upon which the defendants rely cannot apply where the

Secretary has not “acted” at all on the issues before us. Thus,

the District Court properly exercised jurisdiction over the claims

of the nine named plaintiffs in this case.

III.

Having satisfied ourselves that the District Court had

federal subject matter jurisdiction to hear the plaintiffs’ claims,

we turn to the merits of the plaintiffs’ claims, which the District

Court dismissed on the grounds of absolute and qualified

immunity. Because it believed that the defendants “perform[ed]

functions closely associated with the judicial process,” see

Cleavinger, 474 U.S. at 200, the District Court held that these

officials were entitled to the same absolute immunity judges

enjoy for their official acts. Broudy, 366 F. Supp. 2d at 11. As

an alternative holding, the District Court dismissed the

plaintiffs’ claims on qualified immunity grounds, holding that

they failed to allege the denial of any constitutional right, let

17

alone a “clearly established” constitutional right. Id. at 11-13;

see Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (holding that

“government officials performing discretionary functions

generally are shielded from liability for civil damages insofar as

their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known”). The plaintiffs failed to allege what the District Court

held was an indispensable element in their claim for denial of a

constitutional right of access arising out of a cover-up: that the

defendants’ “affirmative misrepresentations”—the cover-up

conduct that allegedly kept the plaintiffs from pursuing their

benefits claims before the VA—took place before, rather than

after, the plaintiffs had filed their claims. Broudy, 366 F. Supp.

2d at 12-13.

On appeal, the plaintiffs challenge the District Court’s

determination that the defendants enjoyed both absolute and

qualified immunity. They argue first that the defendants are not

entitled to absolute immunity because they do not “perform

functions closely associated with the judicial process.” They

argue that the defendants are not entitled to qualified immunity

because even assuming arguendo that a denial-of-access claim

cannot be based on a post-filing cover-up, their complaint did in

fact allege that the cover-up took place before the plaintiffs filed

their claims. Specifically, they point to one of the plaintiffs,

Kathy Jacobovitch, who had not yet filed a claim, but who

nonetheless alleged that she “ha[d] been hampered in her efforts

to file for benefits” based on the defendants’ allegedly unlawful

conduct. In response, the defendants retreat from the District

Court’s conclusion and do not argue, as the District Court held,

that the plaintiffs failed to make this assertion in their complaint.

Instead, the defendants argue, among other things, that the

District Court correctly dismissed the complaint on other

grounds—specifically, that plaintiffs failed to state a claim for

18

denial of access because their right to meaningful access has not,

in fact, been completely foreclosed.

We review the grant of a motion to dismiss de novo and

“may affirm the dismissal of a complaint on different grounds

than those relied upon by the district court.” Amgen, Inc. v.

Smith, 357 F.3d 103, 108, 111 (D.C. Cir. 2004). To begin, we

note that if the District Court was correct that the plaintiffs’

complaint failed to state a claim for denial of access, it could

have based its dismissal on Federal Rule of Civil Procedure

12(b)(6) rather than the more complicated and, in this instance

at least, unnecessary analysis called for by its resort to the law

of absolute and qualified immunity. See U.S. Nat’l Bank of Or.

v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 440 (1993).

Our discussion and ultimate disposition of this case will focus

solely on whether the plaintiffs have stated a denial-of-access

claim. Because we conclude that they have not, we need not

consider the sometimes nuanced issues involved with qualified

immunity. Nor do we need to consider whether the District

Court properly held that the defendants were entitled to absolute

immunity. If, as we conclude, the plaintiffs have failed to state

a denial-of-access claim, the complaint must be dismissed

regardless of whether defendants have absolute or qualified

immunity.

In reviewing the dismissal of a complaint under Rule

12(b)(6), we are to “accept the allegations of the complaint as

true, draw[] all inferences in the plaintiff’s favor, and [] affirm

‘only if it is clear that no relief could be granted under any set of

facts that could be proved consistent with the allegations.’”

Croixland Properties Ltd. P’ship v. Corcoran, 174 F.3d 213,

215 (D.C. Cir. 1999) (quoting Hishon v. King & Spalding, 467

U.S. 69, 73 (1984)); see also Neitzke v. Williams, 490 U.S. 319,

327 (1989). We therefore look to whether the plaintiffs can

prove “any set of facts . . . consistent with the allegations” in

19

their complaint, id., that will entitle them to relief. To make this

determination, we must address two issues: (1) the elements the

plaintiffs must prove to prevail on their denial-of-access claims,

and (2) whether the plaintiffs can, under “any set of facts . . .

consistent with their allegations” prove those elements.

A. The Elements of a Denial-of-Access Claim.

The Supreme Court has long recognized that citizens have

a right of access to the courts. See Chambers v. Baltimore &

Ohio R.R. Co., 207 U.S. 142, 148 (1907) (“[T]he right to sue and

defend in the courts is the alternative of force. In an organized

society it is the right conservative of all other rights, and lies at

the foundation of orderly government. It is one of the highest

and most essential privileges of citizenship. . . .”). The Supreme

Court has grounded the right at various times in different

provisions of the Constitution: the “Article IV Privileges and

Immunities Clause, the First Amendment Petition Clause, the

Fifth Amendment Due Process Clause, and the Fourteenth

Amendment Equal Protection and Due Process Clauses.”

Christopher v. Harbury, 536 U.S. 403, 415 n.12 (2002)

(“Harbury III”) (citations omitted). Furthermore, “[t]he right

not only protects the ability to get into court, but also ensures

that such access be adequate, effective, and meaningful.”

Harbury v. Deutch, 233 F.3d 596, 607 (D.C. Cir. 2000)

(“Harbury I”) (quotation marks and citations omitted), reh’g

denied 244 F.3d 956 (D.C. Cir. 2001) (per curiam) (“Harbury

II”).6

6

The plaintiffs argue that the constitutional right of access to

the courts extends to administrative proceedings. Cf. California Motor

Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972) (“[T]he

right to petition extends to all departments of the Government. The

right of access to the courts is indeed but one aspect of the right of

petition.”) (internal citations omitted). Because we conclude that the

20

“[T]wo categories” of “denial of access” cases emerge from

the case law of the Supreme Court and the Courts of Appeals.

Harbury III, 536 U.S. at 413. In the first category,

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 the claim, is to place the plaintiff in

a position to pursue a separate claim for relief

once the frustrating condition has been removed.

Id. The Court calls these “forward-looking claims.” Id. at 414

n.11. Examples include a prisoner seeking access to a law

library for use in preparing a court filing, id. at 413 (citing

Lewis v. Casey, 518 U.S. 343, 346-48 (1996); Bounds v. Smith,

430 U.S. 817, 828 (1977)), or an indigent plaintiff seeking

waiver of a filing fee that he cannot afford to pay, id. (citing

MLB v. SLJ, 519 U.S. 102, 106-07 (1996); Boddie v.

Connecticut, 401 U.S. 371, 372 (1971)).

“The second category covers claims not in aid of a class of

suits yet to be litigated, but of specific cases that cannot now be

tried (or tried with all material evidence), no matter what official

action may be in the future.” Id. at 413-14 (emphasis added).

The Court explained:

These cases do not look forward to a class of

future litigation, but backward to a time when

specific litigation ended poorly, or could not

plaintiffs fail to state a denial-of-access claim for other reasons, we

need not address this issue.

21

have commenced, or could have produced a

remedy subsequently unobtainable. 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.

Id. at 414 (emphasis added). The Court calls these “backward-

looking claims.” Id. at 414 n.11. Examples include cases where

a cover-up “caused the loss or inadequate settlement of a

meritorious case,” id. at 414 (citing Foster v. Lake Jackson, 28

F.3d 425, 429 (5th Cir. 1994); Bell v. Milwaukee, 746 F.2d

1205, 1261 (7th Cir. 1984)), or where a cover-up caused “the

loss of an opportunity to sue” because it extended through the

limitations period, id. (citing Swekel v. City of River Rouge, 119

F.3d 1259, 1261 (6th Cir. 1997)).

Although the plaintiffs use the bulk of their arguments on

appeal to discuss backward-looking claims, they appear to have

brought both forward-looking and backward-looking claims

against the defendants. We say “appear” because neither the

plaintiffs’ complaint nor the briefs follow the approach of the

Supreme Court in Harbury III to specifically identify claims as

“backward-looking” or “forward-looking.” But the complaint

does seek the “immediate[] release . . . [of] all records and

documents, of whatever type or classification and wherever

located, that in any way contain information regarding the

radiation exposure received by any Atomic Veteran, or that

could be used to produce a realistic and scientifically-valid

reconstruction of such exposure.” This seems to raise what

Harbury III would call a forward-looking claim. By retrieving

these documents, the plaintiffs hope to be able to meaningfully

“pursue a separate claim for relief once the frustrating condition

has been removed.” Harbury III, 536 U.S. at 413.

22

The complaint also alleges that the cover-up denied six of

the nine plaintiffs a meaningful opportunity to seek benefits on

their underlying claims. In the view of the plaintiffs, these

opportunities have now been permanently lost. These

allegations seem to raise what Harbury III would call

backward-looking claims. The “ultimate object” of these claims

appears to be “judgment in the access claim itself, in providing

relief obtainable in no other suit in the future.” Id. Because

plaintiffs’ complaint and briefs focus primarily on these

backward-looking claims, we look first to their necessary

elements.

1. Backward-looking claims.

The only case in our Circuit to address a backward-looking

denial-of-access claim is Harbury I, 233 F.3d 596. Because that

decision, our opinion denying rehearing, Harbury II, 244 F.3d

956, and the Supreme Court’s disposition on review, Harbury

III, 536 U.S. 403, are central to our analysis, we describe them

in some detail.

In Harbury I, Jennifer Harbury, a United States citizen and

the widow of a murdered Guatemalan citizen, claimed that

officials from the State Department and the National Security

Counsel denied her meaningful access to the courts. She alleged

that these officials intentionally deceived her about what they

knew about her husband, who had been kidnapped by

Guatemalan army forces affiliated with the Central Intelligence

Agency. Before her husband’s death, Harbury repeatedly

contacted State Department and National Security Council

officials to try to obtain information about his condition.

According to Harbury, even though these officials knew that her

husband had been captured alive, they “intentionally misled

[her, by making] deceptive statements and omissions, into

believing that concrete information about her husband’s fate did

23

not exist.” Harbury I, 233 F.3d at 600 (quotation marks and

internal citation omitted). Had these officials not misled her,

she argued on appeal, she could have filed a tort claim for

intentional infliction of emotional distress and, as relief, sought

an injunction requiring the officials to protect her husband. Id.

at 609. The District Court dismissed Harbury’s denial-of-access

claims, concluding that she had failed to allege that the

defendants violated a clearly established constitutional right.

Harbury v. Deutch, No. 96-00438, 1999 WL 33456919, at *9-10

(D.D.C. Mar. 23, 1999).

On appeal, we reversed and held that Harbury had alleged

a violation of a clearly established constitutional right because

she alleged that the defendants’ actions prevented her from

obtaining an injunction “in time to save her husband’s life.”

Harbury I, 233 F.3d at 609. “Because his death completely

foreclosed this avenue of relief”—an injunction that could have

prevented the death of her husband—we allowed Harbury’s

denial-of-access suit to proceed. Id (emphasis added); see also

Harbury II, 244 F.3d at 957 (“The panel opinion permits

Harbury to bring her access to courts claim now only because,

if the facts she pleads are correct . . . , defendants’ actions

‘completely foreclosed’ one of her primary avenues of relief.”)

(citation omitted).

On review in Harbury III, 536 U.S. 403, the Supreme Court

reversed, holding that we erred two ways. First, the Court

disagreed with our conclusion that Harbury had identified a

“non-frivolous,” “arguable” underlying claim. The underlying

claim, the Court held, must be described in the complaint:

“[T]he underlying cause of action . . . is an element that must be

described in the complaint, just as much as allegations must

24

describe the official acts frustrating the litigation.” Id. at 415.7

Although Harbury had argued successfully in this Court that

absent a cover-up, she “would have brought an action for

intentional infliction of emotional distress,” presumably alleging

that the mistreatment of her husband had injured her, she raised

this “underlying claim” only on appeal and not in her complaint.

Id. at 418-19. That, the Court held, was insufficient. The

“underlying claim,” the Court concluded, is essential to a well-

pled complaint; otherwise the plaintiff’s claim for denial of

access must fail. Because Harbury’s “complaint failed to

identify the underlying cause of action that the alleged deception

had compromised,” it “did not come even close to stating a

constitutional claim.” Id. at 418.

The Court found Harbury’s complaint deficient in yet

another way. Her complaint did not seek a particular type of

remedy that the Court concluded is essential to a backward-

looking denial-of-access claim:

[T]he 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.

7

See also Harbury III, 536 U.S. at 416 (“Like any other

element of an access claim, the underlying cause of action . . . must be

addressed by allegations in the complaint sufficient to give fair notice

to a defendant.”); id. (“the predicate claim [must] be described well

enough to apply the ‘nonfrivolous’ test and to show that the ‘arguable’

nature of the underlying claim is more than hope”).

25

Id. at 415. The purpose of this requirement is “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.” Id. at

416. Just as the underlying claim must be described “in

accordance with Federal Rule of Civil Procedure 8(a) . . . as if

it were being independently pursued,” “a like plain statement [in

the complaint] should describe any remedy available under the

access claim and presently unique to it.” Id. at 417-18.

Harbury failed to seek any remedy “that could not be

obtained on an existing claim.” Id. at 421. She could still obtain

damages through her tort claim against those who tortured her

husband. Damages, therefore, were not a “remedy . . . presently

unique” to her access claim. Id. at 417-18. Perhaps recognizing

that fact, Harbury argued that, but for the cover-up, she would

have sought an injunction that might have saved her husband’s

life. Id. at 421-22. But although an injunction might have

prevented her husband’s death, it was not “available under the

access claim,” the Court noted, because Harbury’s husband had,

tragically, already died. Id. at 417-18, 422.

Harbury III, and the portions of our decisions in Harbury I

and II which have not been disturbed,8 evidence at least three

elements necessary to prove a backward-looking denial-of-

access claim: an arguable underlying claim, complete

foreclosure, and causation. First, to state a denial-of-access

claim, plaintiffs must identify “in the complaint” a “non-

8

See Action Alliance of Senior Citizens of Greater

Philadelphia v. Sullivan, 930 F.2d 77, 83 (D.C. Cir. 1991) (“Although

the Supreme Court vacated our prior opinion, it expressed no opinion

on the merit of these holdings. They therefore continue to have

precedential weight, and in the absence of contrary authority, we do

not disturb them.”) (citations omitted).

26

frivolous,” “arguable” underlying claim. Id. at 415. Second,

and dispositive in this case, the plaintiffs must show that they

have been denied a remedy for their underlying claims. This

remedy must have been “completely foreclosed.” Harbury I,

233 F.3d at 610; see also Harbury II, 244 F.3d at 957. Thus, if

relief on the underlying claims is still available in a “suit that

may yet be brought,” Harbury III, 536 U.S. at 415, or a

“presently existing claim,” id. at 416, the plaintiffs cannot meet

this element of their claims. See also id. at 413-14 (stating that

backward-looking denial-of-access claims must identify an

underlying claim that “cannot now be tried (or tried with all

material evidence) no matter what official action may be in the

future”). Third, the plaintiffs must show that it was the

defendants’ actions that have cut off their remedy. See Harbury

II, 244 F.3d at 957 (“The panel opinion permits Harbury to bring

her access to courts claim now only because, if the facts she

pleads are correct . . . defendants’ actions completely foreclosed

one of her primary avenues of relief.”) (citation and quotation

marks omitted.).

2. Forward-looking claims.

The Supreme Court’s jurisprudence on forward-looking

claims reveals at least two necessary elements: an arguable

underlying claim and present foreclosure of a meaningful

opportunity to pursue that claim. First, just as with backward-

looking claims, a plaintiff who alleges a forward-looking claim

must plead a non-frivolous, arguable underlying claim. See

Lewis v. Casey, 518 U.S. 343, 353 (1996) (holding that inmate

bringing a forward-looking claim must point to a “nonfrivolous

legal claim [that was] being frustrated [or] impeded”); see also

Harbury III, 536 U.S. at 415 (“even in forward-looking prisoner

class actions to remove roadblocks to future litigation, the

named plaintiff must identify a ‘nonfrivolous,’ ‘arguable’

underlying claim”).

27

Second, a plaintiff who alleges a forward-looking claim

must be “presently den[ied] an opportunity to litigate.” Harbury

III, 536 U.S. at 413. Such plaintiffs must show that a

meaningful opportunity to pursue their underlying claims was

“completely foreclosed.” Harbury I, 233 F.3d at 609; Harbury

II, 244 F.3d at 957.9 In the prison context, for example,

prisoners bringing a forward-looking claim must show an

“actual injury to [their] litigation.” Crawford-El v. Britton, 951

F.2d 1314, 1321 (D.C. Cir. 1991). No such injury exists if a

plaintiff can still meaningfully press his underlying claims

because the plaintiff is not being “presently den[ied] an

opportunity” to meaningfully litigate, even in “the short term.”

Harbury III, 536 U.S. at 413.10

B. Whether the Plaintiffs Can Prove Denial of Access.

We turn now to whether the plaintiffs can show they have

been, and are currently being, denied meaningful access to the

courts.

1. Backward-looking claims.

As mentioned, to state a backward-looking denial-of-access

claim, plaintiffs must show, among other things, that they have

been “completely foreclosed” from meaningfully pursuing their

underlying claims. Plaintiffs’ complaint looks backward to just

9

Although Harbury I and II discussed this requirement in the

context of a backward-looking claim, nothing in these cases or

Harbury III, suggests that a forward-looking claim can proceed if a

plaintiff can still meaningfully pursue the underlying claim.

10

Our discussion of the elements of forward-looking and

backward-looking claims is not intended to be exhaustive. We have

discussed only those elements necessary to resolve this dispute.

28

one group of underlying claims: the claims of six of the nine

plaintiffs that were rejected by the VA. Because these

underlying claims have not been “completely foreclosed,”

however, plaintiffs have failed to state a claim for denial of

access.11

Plaintiffs cannot show, consistent with the allegations of the

their complaint, that no avenue exists through which they can

meaningfully pursue their underlying benefits claims.

Consequently, they cannot show that the relief they seek is not

available in a “suit that may yet be brought,” Harbury III, 536

U.S. at 415, or in a “presently existing claim,” id. at 416. The

six plaintiffs bringing backward-looking claims cannot make

this showing because the Freedom of Information Act (“FOIA”),

and VA regulations that allow for the reopening of prior benefits

proceedings, appear to provide them, in tandem, precisely what

they claim they have been denied. If the defendants are

covering up records of medical tests that describe the amount of

radiation to which these veterans were exposed, FOIA provides

a potential remedy. FOIA provides that, subject to certain

exceptions,12 “each agency, upon any request for records which

11

Because we conclude that plaintiffs cannot show other

elements of a denial-of-access claim, we do not address whether the

complaint describes the underlying claims of these six plaintiffs “well

enough to apply the ‘nonfrivolous’ test and to show that the ‘arguable’

nature of the underlying claim is more than hope.” Harbury III, 536

U.S. at 416.

12

Plaintiffs have not shown that the exceptions to FOIA

described in 5 U.S.C. § 552(b) would allow these agencies to withhold

these documents. In any event, we have reviewed those exceptions

and have not found any exception that would so clearly apply as to

relieve plaintiffs of the obligation of exhausting their FOIA remedies.

See 5 U.S.C. § 552(b)(6) (providing an exception for medical records

but only where “the disclosure of [the records] would constitute a

29

(i) reasonably describes such records and (ii) is made in

accordance with published rules stating the time, place, fees (if

any), and procedures to be followed, shall make the records

promptly available to any person.” 5 U.S.C. § 552(a)(3)(A). If

the agency does not make these records available, a party can

repair to the district court “to enjoin the agency from

withholding agency records and to order the production of any

agency records improperly withheld from the complainant.” Id.

§ 552(a)(4)(B).

Once plaintiffs obtain the records, VA regulations allow

them to “reopen a finally adjudicated claim by submitting new

and material evidence.” 38 C.F.R. § 3.156(a). Under the

regulations, “new evidence” is “existing evidence not previously

submitted to agency decisionmakers” and “material evidence”

is “existing evidence that, by itself or when considered with

previous evidence of record, relates to an unestablished fact

necessary to substantiate the claim.” Id. If these covered-up

documents are what plaintiffs say they are, this provision would

undoubtedly allow plaintiffs to reopen their earlier claims. Once

the claims are reopened, if the new and material evidence

supports a finding that the plaintiffs’ illnesses are service-

connected, benefits will be awarded retroactive to the date of

original filing. 38 C.F.R. § 3.156(c). Plaintiffs therefore will be

in the same position they would have been in had there been no

cover-up at all. See Harbury III, 536 U.S. at 415 (“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.”).

None of the plaintiffs in this case have suggested that this

avenue for relief is foreclosed. Plaintiffs did file a FOIA request

clearly unwarranted invasion of personal privacy”).

30

with the VA, DoD, and other Government agencies, but they

have not challenged in any court these agencies’ failure or

refusal to provide the requested documents. Given plaintiffs’

failure to exhaust FOIA remedies and seek a reopening of their

benefits’ claims, plaintiffs cannot show that their underlying

claims have been “completely foreclosed.” Harbury I, 233 F.3d

at 609. That failure is fatal to their backward-looking claims.

As a fallback, at oral argument plaintiffs’ counsel suggested

that the complaint also looks backward to a second category of

underlying claims: claims for veterans benefits that the plaintiffs

did not file because the defendants’ cover-up kept them from

knowing that they had been subjected to dangerous levels of

radiation while in military service. We have reviewed the

complaint, however, and its four counts do not come close to

identifying such a category of underlying claims. See Harbury

III, 536 U.S. at 416 (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”). The first count, entitled “Denial Of Access to

Courts–Systemic Official Action to Frustrate Plaintiffs’

Preparing, Filing, and Prosecuting Current Claims for Veterans

Benefits,” looks forward to claims not yet closed. J.A. 50

(emphasis added). The second, entitled “Denial Of Access to

Courts–Systemic Official Action to Cause the Loss or

Inadequate Settlement of Past Claims for Veterans Benefits,”

looks backward to claims already filed and closed. J.A. 53

(emphasis added). The last two—“Conspiracy to Deny

Plaintiffs’ Constitutional Rights” and “Failure to Act to Prevent

Denial of Plaintiffs’ Constitutional Rights”—are dependant on

the first two.

The only statement in the complaint which even arguably

looks backward to underlying claims that the plaintiffs did not

file is the following confusing statement: “Plaintiffs have

31

suffered a permanent loss of financial compensation and

opportunities for medical benefits . . . because VA regulations

prohibit awarding Plaintiffs financial and medical benefits lost

because of the denials of past benefit claims and permanently

lost opportunities to file benefits claims even if those claims are

filed or reopened in the future.” J.A. 54. But this statement tells

us nothing about which, if any, of the named plaintiffs

“permanently lost” specific claims in this way, nor does it tell us

anything about the nature of these supposedly “permanently

lost” claims—certainly not enough to give the defendants, let

alone the Court, “fair notice” of these claims or to allow us to

decide if these claims are “nonfrivolous.” See Harbury III, 536

U.S. at 416.

2. Forward-looking claims.

As noted, plaintiffs also appear to bring forward-looking

denial-of-access claims, seeking release of the covered-up

documents so that they can meaningfully “pursue a separate

claim for relief once the frustrating condition has been

removed.” Harbury III, 536 U.S. at 413. But these claims fail

for the same reason as the backward-looking claims. Because

plaintiffs can still seek, through FOIA, the documents they

believe they need to meaningfully pursue their benefits claims,

they cannot show that their opportunity to meaningfully litigate

has been “completely foreclosed,” Harbury I, 233 F.3d at 609,

or that the defendants’ actions “presently den[ied] [the

plaintiffs] an opportunity to litigate,” Harbury III, 536 U.S. at

413. That failing is fatal to their forward-looking claims.

IV.

Plaintiffs have failed to state a claim for denial of access to

the courts. They cannot show, under any set of facts consistent

with the allegations of their complaint, that the defendants

32

completely foreclosed their opportunity to meaningfully pursue

underlying benefits claims before the VA. The decision of the

District Court is therefore affirmed.

So ordered.