Amicus Curiae Brief — Christopher v. Harbury

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JAN 24 202

No. 01-394

In the Supreme Court of the United States

WARREN CHRISTOPHER,

FORMER SECRETARY OF STATE, ET AL., PETITIONERS

Vv.

JENNIFER K. HARBURY

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES AS

AMICUS CURIAE SUPPORTING PETITIONERS

THEODORE B. OLSON

Solicitor General

Counsel of Record

ROBERT D. MCCALLUM, JR.

Assistant Attorney General

PAUL D. CLEMENT

Deputy Solicitor General

PATRICIA A. MILLETT

Assistant to the Solicitor

General

BARBARA L. HERWIG

ROBERT M. LOEB

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTIONS PRESENTED

1. Whether allegations that senior State Department and

National Security Council officials withheld information and

intentionally misled a private citizen about their knowledge

of a foreign rebel leader in the captivity of a foreign govern-

ment state a violation of the constitutional right of access to

the courts, when the only claim is that defendants’ speech

was intentionally misleading and there are no allegations

that the plaintiff ever tried to file a lawsuit and was actually

hindered in that effort.

2. Whether, if the Court concludes that a constitutional

violation is properly grounded on allegations such as these,

government officials violate clearly established law when-

ever they allegedly mislead a private citizen or conceal infor-

mation and it is alleged that they intended to and did hinder

the filing of a hypothetical lawsuit.

TABLE OF CONTENTS

Interest of the United States

Statement

Summary of argument

Argument:

Respondent has no constitutional right, let alone a

clearly established right, to force candid disclosures

of foreign affairs and intelligence information

A. The constitutional right of access to the courts

does not prohibit the government from inten-

tionally withholding information in response

to informal requests

1. The intentional withholding of information

1 in response to an informal citizen request

does not violate the First Amendment

2. The intentional withholding of information in

response to an informal citizen request does

not violate the Due Process Clause

8. The court of appeals’ rule would signifi-

cantly chill and disrupt communications

between citizens and government officials

B. — — —

foreign relations and intelligence information in

response to an informal request for assistance

was not clearly established

C. The existence of an alternative remedial scheme

for obtaining information from the federal

government precludes inference of a Bivens

action

Conclusion

(IID

sae”

2¹

TABLE OF AUTHORITIES

Cases: Page

Anderson v. Creighton, 483 U.S. 635 (1987) 24

Armstrong v. Executive Office of the President, 90

F. 3d 553 (D.C. Cir. 1996), cert. denied, 520 U.S. 1239

(1997) 17

Bachmeier v. Wallwork Truck Ctrs., 544 N.W.2d

122 (N.D. 1996) 16

Bell v. City of Milwaukee, 746 F 2d 1205 (7th Cir.

1984) 13, 14, 16

Bill Johnson’s Rests., Inc. v. NLRB, 461 U.S.

731 (1983) 19

Bivens v. Six Unknown Name, Agents of Fed.

Bureau of Narcotics, 403 U.S. 388 (1971) 1, 7, 29

Blake v. McClung, 172 U.S. 239 (1898) 8, 12

Block v. Neal, 460 U.S. 289 (1983) 19

Blue Chip Stamps v. Manor Drug Stores, 421 US.

723 (1975) 21

Boyd v. Travelers Ins. Co., 652 N.E.2d 267 (III. 1995) 15

Brady v. Maryland, 373 U.S. 83 (1963) 12

Brown v. Hamid, 856 S. W.2d 51 (Mo. 1993) 16

Burns v. Ohio, 360 U.S. 252 (1959) 13

Bush v. Lucas, 462 U.S. 367 (1983) 26, 29

California Motor Transp. Co. v. Trucking

~ Unlimited, 404 U.S. 508 (1972) 8, 23

Cedars-Sinai Med. Ctr. v. Superior Court, 954 P. 2d

511 (Cal. 1998) 16

Chicago & S. Air Lines, Inc. v. Waterman S.S.

Corp., 333 U.S. 103 (1948) 20, 29

Coates v. Johnson & Johnson, 756 F 2d 524

(7th Cir. 1985) 15

Coleman v. Eddy Potash, Inc., 905 P.2d 185 (1995),

overruled on other grounds, 34 P.3d 1148 (N.M.

2001) 15

Cases—Continued: Page

College Sav. Bank v. Florida Prepaid PostSecondary

Educ. Expense Bd., 527 U.S. 666 (1999) 18

Corfield v. Coryell, 6 Fed. Cas. 546 (C.C. E.D. Pa.

182 (No. 3230) 13

Correctional Servs. Corp. v. Malesko, 122 S. Ct. 515

(2001) 7, 26, 27, 29

County of Sacramento v. Lewis, 523 U.S. 833 (1998) .... 14,18

Crawford-El v. Britton, 523 U.S. 574 (1998) 18, 23

Crowder v. Sinyard, 884 F 2d 804 (Sth Cir. 1989),

cert. denied, 496 U.S. 924 (1990) 18

DeLaughter v. Lawrence County Hosp., 601 So.2d 818

(Miss. 1992) 16

Department of the Navy v. Egan, 484 U.S. 518 (1988) ... 20

Department of the Air Force v. Rose, 425 U.S. 352

(1976) 27

Eastern R.R. Presidents Conf. v. Noerr Motor Freight,

Inc., 365 U.S. 127 (1961) 10

Edelman v. Federal Hous. Admin., 382 F 2d 594

(2d Cir. 1967) 19

Fada Indus., Inc. v. Falchi Bldg. Co., 730 N.Y S. 2d

827 (Sup. Ct. 2001) 15

Federated Mut. Ins. Co. v. Litchfield Precision

Components, Inc., 456 N.W.2d 434 (Minn. 1990) 15

Foster v. City of Lake Jackson, 28 F.3d 425 (5th Cir. ;

1994) 15, 25

Foster v. Lawrence Mem’! Hosp, 809 F. Supp. 831

(D. Kan. 1992) 15

Goff v. Harold Ives Trucking Co., 27 S.W.3d 387

(Ark. 2000) 16

Guillory v. Dillard’s Dep't Store, Inc., 777 So.2d 1

(La. Ct. App. 2000) 15

Halperin v. Kissinger, 807 F 2d 180 (D.C. Cir. 1986) ..... 23

Harlow v. Fitzgerald, 457 U.S. 800 (1982) 7

Hatahley v. United States, 351 U.S. 173 (1956) 19

Hay v. Peterson, 45 P. 1073 (Wyo. 1896) 16

Cases—Continued: Page

Henderson v. Tyrrell, 910 P.2d 522 (Wash. Ct. App. *

*— v. Deen, 310 S. E. 2d 326 (N.C. 1984) 15

Hibbits v. Sides, 34 P.3d 327 (Alaska 2001) 15

Holmes v. Amerex Rent-A-Car, 710 Ad 846

(D.C. 1998) 15

Houchins v. KQED, Inc., 488 U.S. 1 (1978) — 5, 6, 10, 11, 17

Hudson v. Palmer, 468 U.S. 517 (1984) 21

Hull, Ex parte, 312 U.S. 546 (1941) 13

Hunter v. Bryant, 502 U.S. 224 (1991) 7,23

Hutchins v. Utica Mut. Ins. Co., 484 N. V. S. 2d 686

(App. Div. 1985) . 15

Illinois v. Perkins, 496 U.S. 292 (1990) 22

Jenkins v. Talladega City Bd. of Educ., 115 F.3d 821

(11th Cir. ), cert. denied, 522 U.S. 966 (1997) * 2⁵

John Doe Agency v. John Doe Corp., 498 U.S. 146 1

1989

K v. Avery, 393 U.S. 483 (1969) 13

Kippenhan v. Chaulk Servs., Inc., 697 N. E. 2d 527

(Mass. 1998) 16

Kyles v. Whitley, 514 U.S. 419 (1995) 12

La Raia v. Superior Court, 722 P.2d 286 (Ariz. 1986) .... 15

Larson v. Domestic & Foreign Commerce Corp.,

337 U.S. 682 (1949) 19

Lauren Corp. v. Century Geophysical Corp., 953

P.2d 200 (Colo. Ct. App. 1998) 16

Lewis v. Casey, 518 U.S. 343 (1996) eit

v. Briggs, 475 U.S. 335 (1986)

par v. Madison, 5 U.S. (1 Cranch) 137 (1803) 29

Metz v. United States, 788 F 2d 1528 (11th Cir.),

cert. denied, 479 U.S. 930 (1986) 19

Meyn v. State, 594 N.W.2d 31 (Iowa 1999) 16

Miller v. Allstate Ins. Co., 573 So. 2d 24 (Dist. Ct.

App. 1990), review denied, 581 So.2d 1307 (Fla. 1991) — 15

VII

Cases—Continued:

Miller v. Montgomery County, 494 A. 2d 761 (Ct. Spec.

App.), cert. denied, 498 A.2d 1185 (Md. 1985) ..................

Minnesota State Bd. for Comm. Colls. v. Knight, 465

U.S. 271 (1984)

Monsanto Co. v. Reed, 950 S. W. 2d 811 (Ky. 1997) ..........

Murray v. Giarratano, 492 U.S. 1 (1989)

Oliver v. Stimson Lumber Co., 998 P.2d 11 (Mont.

1999)

Paul v. Davis, 424 U.S. 698 (1976)

Pell v. Procunier, 417 U.S. 817 (1974)

Pennsylvania v. Finley, 481 U.S. 551 (1987

Public Citizen v. United States Dep't of Justice, 491

U.S. 440 (1989)

Rosenblit v. Zimmerman, 766 A.2d 749 (NJ. 2001) .......

Ryland v. Shapiro, 708 F. 2d 967 (5th Cir. 1988) ..............

Saucier v. Katz, 121 S. Ct. 2151 (2001)

Schroeder v. Commonwealth, 710 A.2d 23 (Pa. 1998) .....

Page

Schweiker v. Chilicky, 487 U.S. 412 (1988) . 26, 27, 29

Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984)

Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1872) ........

Smith v. Bennett, 365 U.S. 708 (1961)

Smith v. Howard Johnson Co., 615 N.E.2d 1037

(Ohio 1993)

Souza v. Fred Carries Contracts, Inc., 955 P. 2d 3

(Ariz. Ct. App. 1997)

Stender v. Vincent, 992 P.2d 50 (Haw. 2000)

Sullivan v. CIA, 992 F 2d 1249 (Ist Cir. 1998) .................

Swekel v. City of River Rouge, 119 F.3d 1259 (6th Cir.

1997), cert. denied, 522 U.S. 1047 (1998)

Talbert v. United States, 932 F 2d 1064 (4th Cir.

1991)

Thomas-Lazear v. FBI, 851 F.2d 1202 (9th Cir.

Cir. 1988)

Thompson v. Owensby, 704 N.E.2d 134 (Ct. App.

1998), transfer denied, 726 N. E. 2d 304 (Ind. 1999)

VIII

Cases Continued:

Totten v. United States, 92 U.S. 105 (1875)

Trevino v. Ortega, 969 S.W.2d 950 (Tex. 19988)

United States v. Stanley, 483 U.S. 669 (1 —

United States v. Verdugo-Urquidez, 494 U.S. 259

(1990)

U.S. Info. Agency v. Kre, 989 F. 2d 1211 (D.C. Cir.

1993), cert. denied, 510 U.S. 1109 (1994)

Vasquez v. Hernandez, 60 F.3d 325 (7th Cir. 1995),

cert. denied, 517 U.S. 1156 (1996)

Virginia Bankshares, Inc. v. Sandberg, 501 US.

1083 (1991)

Wal-Mart Stores, Inc. v. Goodman, 789 So.2d 166

(Ala. 2000)

Walters v. National Assn of Radiation Survivors,

473 U.S. 305 (1985)

Weigl v. Quincy Specialties Co., 601 N.Y.S.2d 774

(Sup. Ct. 1993)

Williamson County Reg l Planning Comm n v.

Hamilton Bank, 473 U.S. 172 (1985)

Wilson v. Layne, 526 U.S. 603 (1999)

Wolff v. McDonnell, 418 U.S. 539 (1974)

Constitution, statutes and rules:

US. Const.:

Art. IV, § 2, Cl. 1 (Privileges and Immunities

Clause)

Amend. I 3, 5,6,

Petition Clause

Amend. V

Due Process Clause 5, 8, 11, 12, 18

Just Compensation Clause

Amend. XIV (Equal Protection Clause)

Central Intelligence Agency Information Act,

50 U.S.C. 431

Civil Service Reform Act of 1978, Pub. L. No. 95-454,

92 Stat. 111

Statutes and rules—Contined:

— ome

§ 10(b)

§ 10(d)

Federal Tort Claims Act:

28 U.S.C. 1346(b)(1) (Supp. V 1999)

28 U.S.C. 2680(h)

28 U.S.C. 2680(k)

Freedom of Information Act:

5 U.S.C. 552

5 U.S.C. 552(a)(4)(B) (1994 & Supp. V 1999)

5 U.S.C. 552(a)(4)(E)

5 U.S.C. 552(a)(6)(A) (1994 & Supp. V 1999)

5 U.S.C. 552(a)(6)(E) (1994 & Supp. V 1999)

5 U.S.C. 552(b)(1)

5 U.S.C. 552(b\(3)

5 U.S.C. 552(b\(7)

5 U.S.C. 552(c)

Government in the Sushine Act:

5 U.S.C. 552b

5 U.S.C. 552b(b)

5 U.S.C. 552b(c)(1)

5 U.S.C. 552b(c)(3)

5 U.S.C. 552b(c)(7)

5 U.S.C. 552b(f)(2)

5 U.S.C. 552b(h)

5 U.S.C. 552b(i)

Privacy Act of 1974:

5 U.S.C. 552a

5 U.S.C. 552a(d)

5 U.S.C. 552a(g)

5 U.S.C. 552a(k)\(1)

5 U.S.C. 552a(k)(2)

5 U.S.C. 552a(k\3)

Westfall Act, 28 U.S.C. 2679(d)

5 U.S.C. 702

—

5 SS SSSEEERN ESS S888 8 8 8 gues é

Statutes and rules—Contined:

18 U.S.C. 1001 (1994 & Supp. V 1999)

18 U.S.C. 1510 (1994 & Supp. V 1999)

18 US.C. 1511

18 U.S.C. 1512 (1994 & Supp. V 1999)

18 U.S.C. 1621-1623

IW. & M., 2d Sess., ch. 2, § 5

Fed. R. Civ. P.:

Rule 12(e)

Rule 37

Rule 60(b)

Miscellaneous:

United States Dep’t of Justice, Freedom of Information

Act Guide and Privacy Act Overview (May 2000)

House Perm Select Comm. on Intelligence, 105th Cong.,

Ist Sess., Report on the Guatemala Review (Mar. 19,

1997)

Intelligence Oversight Bd., Report on the Guatemala

Review (June 28, 1996)

S. Nolte, The Spoliation Tort: An Approach to

Underlying Principles, 26 St. Mary's L. J. 351

(1995)

S. Rep. No. 813, 89th Cong., Ist Sess. (1965)

Sovereign Immunity: Hearings Before the Subcomm.

on Admin. Practice and Procedure of the Senate

Comm. on the Judiciary, 91st Cong., 2d Sess. (1970) ....

5 The Founders Constitution (P. Kurland &

R. Lerner eds., 1987)

* 3 — T—

In the Supreme Court of the Anited States

No. 01-394

WARREN CHRISTOPHER,

FORMER SECRETARY OF STATE, ET AL., PETITIONERS

JENNIFER K. HARBURY

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES AS

AMICUS CURIAE SUPPORTING PETITIONERS

INTEREST OF THE UNITED STATES

This case concerns a claim for damages under Bivens v.

Siz Unknown Named Agents of Federal Bureau of Nar-

cotics, 403 U.S. 388 (1971), against high-level federal officials,

based on their alleged failure to disclose and intentional

concealment of intelligence and foreign relations information

informally requested by a private citizen. The United States

has a significant interest in this matter because the ruling

below exposes government officials to a claim for personal

monetary liability if they are deemed to be less than fully

forthcoming in responding to a request for assistance from a

member of the public. The United States also has a sub-

stantial interest in protecting government employees from

litigation that may interfere with their exercise of lawful

discretion in the performance of their official functions,

especially when handling sensitive intelligence and foreign

relations information.

STATEMENT

1. Respondent, an American citizen, alleges that she was

the wife of Efrain Bamaca-Velasquez, a Guatemalan national

and a leader of the rebel Guatemalan National Revolutionary

Union. Pet. App. 2a. Respondent asserts that Bamaca was

captured, tortured, and later executed by members of the

Guatemalan military, including individuals who were alleg-

edly paid “CIA ‘assets.’” Id. at 3a. Respondent claims that,

in 1993, upon learning that Bamaca was alive and being tor-

tured, she contacted several State Department officials and

asked for information about Bamaca’s status. Although the

officials allegedly agreed to look into the matter, they never

provided her with specific information. Id. at 3a- Aa.

In October 1994, in response to a press report, the State

Department publicly confirmed Bamaca’s capture by govern-

ment forces, but also reported that it had no information

confirming that Bamaca was still alive. Pet. App. 4a.

“{SJuspect[ing] that information was still being improperly

withheld from her,” J.A. 34, respondent filed Freedom of

Information Act requests with the State Department, the

CIA, the National Security Council, and other federal

agencies in January 1995. Although the requests were

expedited, she alleges that she received no documents “in

the following months.” Pet. App. 4a; J.A. 35. Three months

later, State Department and National Security Council

officials told respondent “they believed Bamaca was dead

because so many years had passed without evidence that he

was alive.” Pet. App. 4a. Shortly thereafter, then-Congress-

man Torricelli asserted publicly that Bamaca had been killed

years earlier at the order of a Guatemalan army colonel who

allegedly had been a paid CIA informant. Id. at 4a-5a.'

2. Respondent filed suit against various named and

unnamed officials of the CIA, the State Department, and the

N ational Security Council, seeking compensatory and puni-

tive damages. Among her 28 causes of action, she alleged

that the officials’ failure to provide her with all the informa-

tion in their possession, or accessible to them, violated her

“Right to Meaningful Access to the Courts” under the First

and Fifth Amendments. Pet. App. 7a; J.A. 49. Specifically,

respondent asserted that, while Bamaca was still alive, State

Department officials made “fraudulent statements and

intentional omissions” about his exact whereabouts and

status that prevented her from “effectively seeking adequate

legal redress,” J.A. 37, and that they did so because “they did

not want to threaten their ability to obtain information from

Mr. Bamaca,” and feared “public embarrassment, censure,

and/or legal liability,” J.A. 31-32.

3. After ordering respondent to “put forward specific,

nonconclusory factual allegations” in support of her claims,

Fed. R. Civ. P. 12(e) (D. Ct. 7/20/98 Order at 1), and review-

ing her submission, the district court dismissed all eight of

respondent’s Bivens counts. Pet. App. 30a-59a. The court

rejected respondent’s access-to-the-courts claim because she

never “attempted to gain access to state-court remedies

before bringing a constitutional denial of access claim,” id. at

45a, and so her “suspicion that the alleged cover-up may

a _ The House Intelligence Committee subsequently released a report

criticizing Representative Torricelli’s public release of classified informa-

tion and finding “no evidence to support [his] allegations that United

States Government personnel in any way directed or participated in the

* * * interrogation and subsequent disappearance of Bamaca.” House

Perm. Select Comm. on Intelligence, 105th Cong., Ist Sess., Report on the

Guatemala Review 3, 6 (Mar. 19, 1997); id. at 3 (“none of the allegations

raised by Representative Torricelli * * * have proven to be true”).

have prejudiced her rights to bring a separate action is noth-

ing more than a guess,” id. at 46a. The district court further

noted that respondent “never addresse[d]” what form such a

lawsuit would have taken or whether it could have been

maintained. Id. at 47a n.4. “A cover-up to conceal evidence,”

the district court explained, “cannot prejudice a plaintiff’s

access to courts if the cause of action contemplated is

untenable from the outset.” Ibid. The court also ruled that,

even if respondent’s constitutional rights had been infringed,

those rights were not clearly established.

4. The court of appeals reversed only the dismissal of

respondent’s access-to-the-courts claim. Pet. App. Ia-29a.

The court acknowledged that respondent “never alleges that

defendants breached a duty to disclose information to her,”

id. at 23a, but it held that petitioners’ conduct nevertheless

“effectively prevented her from seeking emergency injunc-

tive relief in time to save her husband’s life,” id. at 25a,

“based on an underlying tort claim for intentional infliction of

emotional distress,” id. at 24a. The court of appeals denied

qualified immunity because it would “have been clear to an

objectively reasonable official that affirmatively misleading

[respondent] for the purpose of preventing her from filing a

lawsuit would violate her constitutional rights.“ Id. at 28a.

In response to a petition for rehearing, the panel issued a

supplemental opinion, Pet. App. 61a-68a, limiting its decision

to situations where “defendants both affirmatively mislead

plaintiffs and do so for the very purpose of protecting

government officials from suit,” id. at 62a. With respect to

the argument that respondent had failed to “point to a color-

able claim that has been prejudiced by the alleged cover-up,”

id. at 63a, the panel found it sufficient that the complaint

alleged that the cover-up had “foreclosed [her] from effec-

tively seeking adequate legal redress.”

5. The court of appeals denied the petitioners’ request

for rehearing en banc. Pet App. 69a-70a. Judges Henderson

and Sentelle dissented, id. at 7Oa-7 la, on the ground that re-

spondent “has nowhere identified what ‘legal redress’ might

have been adequate to save her husband” from “Guatemalan

nationals [operating] on Guatemalan soil” against “another

Guatemalan national,” id. at 70a. In the dissent’s view,

“(tJhe only cause” of her inability to obtain relief “is the ab-

sence of any effective relief,” ibid., and, in any event, case

precedent did not clearly establish any constitutional viola-

tion, id. at 71a.

SUMMARY OF ARGUMENT

Respondent’s complaint that, despite offers to help, high-

ranking national security officials failed to disclose to her all

of the sensitive information available to them about the

status of her alleged husband, a Guatemalan guerrilla leader,

does not state a constitutional violation, let alone a clearly

established one. The right of access to the courts does not

include a right to force government officials to disclose all

information available to them, even when that information

might preserve litigation options. Respondent purports to

base her constitutional case on the First and Fifth Amend-

ments. But while the First Amendment’s Petition Clause

forbids direct governmental obstruction of, or retaliation for,

the presentation of grievances, this Court’s cases make clear

that the First Amendment does not impose any affirmative

duty on the government to respond to such petitions or to

provide the grist for litigation. See, e. g., Houchins v. KQED,

Inc., 438 U.S. 1 (1978). The Due Process Clause likewise

operates as a negative prohibition on the imposition of direct

impediments to the pursuit of viable court actions. It does

not saddle government officials with the affirmative duty to

disclose information whenever a citizen requests it, nor, in

the absence of a lawsuit, must officials facilitate the dis-

covery of potential claims against the government. “The

Constitution itself is not] a Freedom of Information Act.”

Id. at 14.

Nor can respondent demonstrate that the alleged with-

holding of information impaired any legally viable cause of

action or caused her any injury. Had it been filed, her

hypothesized injunctive suit for the intentional infliction of

emotional distress would have faced formidable sovereign

immunity and justiciability hurdles. Respondent, however,

never filed such a suit, even though a due process violation

requires a concrete effort to avail oneself of existing legal

remedies. Nor did respondent file a timely FOIA request.

There are ample existing political, statutory, criminal law,

and state tort law mechanisms for obtaining information

from the government and for redressing the willful sup-

pression, destruction, or falsification of evidence. But

respondent chose not to invoke those remedies, and there is

no sound justification for creating a new constitutional tort

to replicate the relief they offer.

Nor do public policy considerations commend such a course.

Recognition of a broad constitutional right to full disclosure

in response to informal queries would stifle government-to-

citizen communications and launch the courts on a prolonged

course of identifying and delimiting the exceptions to and

limitations on that disclosure obligation. Such delicate

balancing exercises are better left to the political branches.

Even were the Court to recognize a constitutional duty of

full disclosure, qualified immunity would remain appropriate

because no such constitutional right was clearly established

at the time petitioners acted. Moreover, even if such a

constitutional right is recognized, there is no reason to infer

a Bivens action to remedy its violation. Congress already

has provided a network of interlocking statutory mechanisms

for obtaining information and documents from federal

agencies. Together, the Freedom of Information Act and re-

lated open government laws establish a comprehensive

remedial framework that protects both the public interest in

obtaining information about governmental policies and pro-

grams, and the government’s need for confidentiality to pro-

tect the national security. In light of the calibrated remedial

balance reflected in those statutes, there is no reason to

superimpose a Bivens action. See Correctional Servs. Corp.

v. Malesko, 122 S. Ct. 515 (2001).

ARGUMENT

RESPONDENT HAS NO CONSTITUTIONAL RIGHT,

LET ALONE A CLEARLY ESTABLISHED RIGHT, TO

FORCE CANDID DISCLOSURES OF FOREIGN AF-

FAIRS AND INTELLIGENCE INFORMATION

In Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (1971), this Court recog-

nized an implied private cause of action for damages against

federal officers in their personal capacities, where they are

alleged to have violated constitutional rights under color of

their federal authority. Officials sued under Bivens, how-

ever, enjoy qualified immunity unless their conduct violates

“clearly established statutory or constitutional rights of

which a reasonable person would have known.” Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982).

In evaluating a qualified immunity defense, a court must

undert e two distinct inquiries. Saucier v. Katz, 121 S. Ct.

2151, 2155 (2001). The court first must decide whether the

facts as alleged state a violation of a constitutional right. If

they do, the court next must decide whether that right was

clearly established “under settled law,” Hunter v. Bryant,

502 U.S. 224, 228 (1991) (per curiam), such that “it would be

clear to a reasonable officer that his conduct was unlawful in

the situation he confronted,” Saucier, 121 S. Ct. at 2156.

Respondent’s claimed denial of access to the courts fails on

both fronts.

A. The Constitutional Right Of Access To The Courts Does

Not Prohibit The Government From Intentionally With-

holding Information In“ oonse To Informal Requests

Although the Constitution s text does not expressly pro-

vide a right of “access to the courts,” decisions of this Court

have grounded it in the First Amendment’s Petition Clause,

see, e. g., California Motor Transp. Co. v. Trucking. Un-

limited, 404 U.S. 508, 513 (1972), the Fifth Amendment’s

Due Process Clause, see, ¢.g., Murray v. Giarratano, 492

U.S. 1, 11 n.6 (1989) (plurality opinion); Walters v. National

Ass n of Radiation Survivors, 473 U.S. 305, 335 (1985), the

Equal Protection Clause, see, ¢.g., Pennsylvania v. Finley,

481 U.S. 551, 557 (1987), and the Privileges and Immunities

Clause, U.S. Const., art. 4, § 2, Cl. 1, see, eg., Blake v.

McClung, 172 U.S. 239, 249 (1898). Whatever its textual

source—respondent relies on the First and Fifth

Amendments (J.A. 49)—this Court’s decisions make clear

that it operates as a negative prohibition on governmental

conduct that prevents an individual from presenting inde-

pendently identified grievances to a court of law. It does not

impose any affirmative duty of candor on the government or

require it to provide information in response to informal

requests.

The central factual allegations composing respondent’s

access-to-the-court claims are that, before Bamaca’s death,

several State Department officials, including the Am-

bassador to Guatemala, “promised to look into the matter

and to assist her,” but did not (J.A. 29, 30-31), even though

evidence concerning Bamaca’s fate allegedly was “readily

available and accessible to” them (J. A. 30). Thus, the crux

2 The court of appeals viewed respondent’s alleged inability to seek

emergency injunctive relief as critical to her constitutional claim. Had

petitioners’ actions not allegedly prevented respondent from seeking

emergency injunctive relief, the court of appeals indicated that it “might

agree with the district court” order dismissing the case. Pet. App. 24a.

of respondent’s complaint is not that government officials

interposed hurdles that prevented her from filing a case in

court or obstructed pending proceedings. It is that

government officials “affirmatively deceived her” (Pet. App.

23a) by deliberately withholding and denying knowledge of

information that, if disclosed, would have allowed her quickly

to formulate a cause of action against the government for

“emergency injunctive relief in time to save her husband’s

life” (id. at 25a). The claim is thus more accurately de-

scribed, not as denying her access to the courts, but as deny-

ing her timely access to information that in some unex-

plained fashion might have inspired her to file some form of

lawsuit that might, in turn, in some unexplained way, have

prevented Bamaca’s execution by Guatemalan soldiers. No

such amorphous and illusory right exists in the Constitution.

1. The Intentional Withholding of Information in Re-

sponse to an Informal Citizen Request Does Not Violate

the First Amendment

Both history and precedent establish that the First

Amendment right to petition the government for redress of

grievances is a purely negative protection against govern-

mental obstruction; it does not impose any affirmative obli-

gations on the government to respond or police the content

of its response. The First Amendment’s Petition Clause

traces its roots to the English Bill of Rights of 1689, which

created the right as an entitlement to air grievances and a

protection against retaliation for doing so. The Bill of Rights

declared that “it is the right of the subjects to petition the

King, and all committments and prosecutions for such peti-

made by petitioners “After Her Husband’s Extrajudicial Execution” (J.A.

32), those statements could not have impeded her ability to seek emer-

gency relief that could have saved Bamaca’s life. In any event, those

statements do not differ substantively from those preceding Bamaca’s

death and thus do not alter the legal analysis.

tioning are illegal.” 1 W. & M., 2d Sess., ch. 2, § 5 (Eng.). The

Continental Congress likewise couched the right largely in

terms of a protection against retaliation: “That they have a

right peaceably to assemble, consider of their grievances,

and petition the king; and that all prosecutions, prohibitory

proclamations, and commitments for the same, are illegal.” 5

The Founders’ Constitution 199 (P. Kurland & R. Lerner

eds., 1987). The text of the First Amendment reflects those

historical roots by protecting “the right to petition the Gov-

ernment for a redress of grievances.” U.S. Const. Amend. I.

That protection is fundamental because “the whole concept

of representation depends upon the ability of the people to

make their wishes known to their representatives.” Eastern

R. R. Presidents Conf. v. Noerr Motor Freight Inc., 365 U.S.

127, 137 (1961).

Although the Constitution thus guarantees the right to

voice grievances, this Court’s cases interpreting the Petition

Clause consistently have eschewed employing it to regulate

the government’s response to petitions or creating a right of

access to information. In Minnesota State Board for Com-

munity Colleges v. Knight, 465 U.S. 271 (1984), the Court

stressed that, while the First Amendment empowers

individuals to “petition openly” and protects them “from

retaliation for doing so,” the Petition Clause “does not

impose any affirmative obligation on the government to

listen [or] to respond.” Id. at 286 (internal quotation marks

omitted).

Indeed, this Court has recognized that “(tJhere is no dis-

cernible basis” in the First Amendment “for a constitutional

duty to disclose, or for standards governing disclosure of or

access to information.” Houchins v. KQED, Inc., 488 US. 1,

14 (1978). Nor is there a “constitutional right to have access

to particular government information, or to require openness

from the bureaucracy.” Jbid. (internal quotation marks

omitted). “The Constitution itself is nfot] a Freedom of In-

—

formation Act.” Ibid. While respondent undoubtedly had a

First Amendment right to bring her concerns, whatever

they might be, to the attention of government officials, “{i}t

is quite another thing to suggest that the Constitution im-

poses upon government the affirmative duty to make avail-

able to [respondent] sources of information” about foreign

relations and foreign intelligence operations “not available to

members of the public generally.” Pell v. Procunier, 417

U.S. 817, 834-835 (1974). “That proposition finds no support

in the words of the Constitution or in any decision of this

Court.” Ibid.

That respondent allegedly desired the information to fa-

cilitate the prosecution of some form of lawsuit does not alter

the analysis. The laws governing discovery of information

needed for litigation “are a matter of legislative grace,” not

constitutional compulsion. Seattle Times Co. v. Rhinehart,

467 U.S. 20, 32 (1984). A “litigant has no First Amendment

right of access to information made available only for pur-

poses of trying his suit.” Ibid. By the same token, respon-

dent cannot wring out of the First Amendment a right to

extra-judicial, pre-litigation discovery from the government

of information relevant to formulating a cause of action

against the government.

2. The Intentional Withholding of Information in Re-

sponse to an Informal Citizen Request Does Not Violate

the Due Process Clause

a. Respondent’s arguments fare no better under the Due

Process Clause. In Lewis v. Casey, 518 U.S. 343 (1996), this

Court addressed the due process right of access to the courts~

and expressly “disclaim[ed]” any “suggest{ion] that the State

must enable [individuals] to discover grievances.” Id. at 354.

Rather than obliging the government to provide information

and materials that would allow individuals “to transform

themselves into litigating engines,” id. at 355, the right of

access to the courts only empowers an individual “to bring to

court a grievance that the [individual] wisheſs] to present,”

id. at 354.

Likewise, Wolff v. McDonnell, 418 U.S. 539 (1974),

stressed that the right of access to the courts founded in the

Due Process Clause simply “assures that no person will be

denied the opportunity to present to the judiciary allegations

concerning violations of fundamental constitutional rights.”

Id. at 579. Thus the right of access to the courts “has not

been extended by this Court to apply further than protecting

the ability of an inmate to prepare a petition or complaint.”

Id. at 576. Nothing in the Court’s opinion in Wolff suggested

that the government must also provide—or refrain from

withholding—the grist for the complaint. Once litigation is

commenced, certain statutes and the Federal Rules may

obligate the government to comply with discovery requests,

but prior to the initiation of a lawsuit, the government is

under no obligation to respond to informal requests for infor-

mation in a way that preserves the individual’s unarticulated

litigation options. And the constitutional analysis does not

change just because a government official promises to look

into a matter and get back in touch.

Casey's and Wolff's recognition that the right of access

imposes no affirmative duty on government to facilitate the

identification of causes of action is consistent with the his-

torical genesis of that right in the Privileges and Immunities

Clause. See, ¢.g., Blake v. McClung, 172 U.S. 239, 249 (1898)

(Privileges and Immunities include the right “to institute

8 The Due Process Clause does impose a specialized and limited duty

of disclosure in the context of criminal prosecutions. See Brady v. Mary-

land, 373 U.S. 83 (1963). The far-reaching duty of disclosure that respon-

dent seeks to impose broadly on all governmental actors far exceeds

anything that criminal defendants are entitled to under Brady. Cf. Kyles

v. Whitley, 514 U.S. 419, 436-437 (1995) (“{TJhe Constitution is not violated

every time the government fails or chooses not to disclose evidence that

might prove helpful to the defense.”).

and maintain actions of any kind in the courts of the state“).

Many of the earliest due process and equal protection cases

likewise focused on governmentally imposed structural im-

pediments to the presentation of a complaint to a court of

law. See, ¢.g., Eæ parte Hull, 312 U.S. 546, 549 (1941) (State

may not condition the right to apply to a federal court for a

writ of habeas corpus on approval by the warden).°

The Court’s analysis in Casey and Wolff applies with

greater force here. Those cases arose in the prison context,

where the government literally interposes significant physi-

cal and informational barriers between the inmate and the

courts. The rights of a free citizen, who suffers from no com-

mensurate restrictions, to governmental assistance in identi-

fying potential causes of action cannot be greater than the

prisoners who do face those obstacles.

b. In finding that respondent had properly alleged a

denial of access to the courts, the court of appeals relied pri-

marily not on decisions of this Court, but on lower court

decisions holding that law enforcement officials may infringe

the right of access to courts when they cover-up their own or

their co-workers’ wrongdoing. For example, in Bell v. City

of Milwaukee, 746 F.2d 1205 (7th Cir. 1984), police officers

attempted to cover-up an improper shooting by planting a

knife on the victim and lying to the victim’s relatives,

4 See also Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 79 (1872)

(“right of free access to * * * courts of justice in the several States”);

Corfield v. Coryell, 6 Fed. Cas. 546, 552 (C.C.E.D. Pa. 1823) (No. 3230)

(Washington, Circuit Justice) (right to “institute and maintain actions of

any kind in the courts of the state”).

5 See also Johnson v. Avery, 393 U.S. 483, 487 (1969) (active inter-

ference with preparation of legal documents that “effectively” forbids “pri-

soners to file habeas corpus petitions”); Smith v. Bennett, 365 U.S. 708,

713-714 (1961) (waiver of filing fee for habeas corpus petitions based on

indigency); Burns v. Ohio, 360 U.S. 252, 258 (1959) (same, with respect to

docket fees, because the rule “completely barſs] the petitioner from

obtaining any review at all“).

causing them to accept a de minimis settlement from the

city. Id. at 1261-1262. In Ryland v. Shapiro, 708 F. 2d 967

~ (5th Cir. 1983), a coroner and a district attorney covered up a

murder committed by a fellow prosecutor by falsifying

records to reflect that the victim had committed suicide. Id.

at 969-975.

The willful destruction and falsification of evidence in Bell

and Ryland were, of course, inexcusable and unlawful on

many-fronts. But the conduct at issue here—an alleged lack

of forthrightness in voluntarily responding to a private

citizen’s informal requests for information—hardly consti-

tutes that sort of “cover-up.”

More fundamentally, not every wrongful action of a

government official is unconstitutional. County of Sacra-

mento v. Lewis, 523 U.S. 833, 845 n.7 (1998) (the common law

“made many things unlawful, very few of which were ele-

vated to constitutional proscriptions”). The traditional

understanding and operation of the right of access to the

courts as a right to institute and maintain legal actions bears

little logical connection to those isolated instances of un-

lawful, extra-judicial misconduct designed to deny justice in

a particular situation. Moreover, there is no need to contort

constitutional. doctrine to redress, through a new consti-

tutional tort, conduct that already is criminally and civilly

actionable. The criminal law punishes and deters p’ ecisely

such behavior. Tort law also provides remedies. In addition

to tort actions for the officers’ underlying conduct (such as

wrongful death), independent tort suits for the spoliation of

6 See, e., 18 U.S.C. 1001 (1994 & Supp. V 1999) (falsification of

records); 18 U.S.C. 1510 (1994 & Supp. V 1999) (obstruction of federal

criminal investigations); 18 U.S.C. 1511 (obstruction of state and local law

enforcement); 18 U.S.C. 1512 (1994 & Supp. V 1999) (x itness tampering);

18 U.S.C. 1621-1623 (perjury, subornation of perjury, and false declara-

tions).

— — — —

evidence, fraudulent concealment, or impairment of the right

to sue may also be available.’

Once an individual commences litigation, ordinary dis-

covery processes and sanctions provide adequate means of

obtaining information relevant to the litigation and policing

cover-ups or failures to disclose. Where evidence is lost or

prejudiced due to the passage of time or the destruction of

documents, courts can resolve such matters in favor of the

plaintiff under local rules of evidence and procedure Where

7 See, e.g., Swekel v. City of River Rouge, 119 F.3d 1259, 1264 (6th

Cir. 1997), cert. denied, 522 U.S. 1047 (1998); Hibbits v. Sides, 34 P.3d 327

(Alaska 2001); Rosenblit v. Zimmerman, 766 A.2d 749, 757-758 (N.J. 2001); ~

Fada Indus., Inc. v. Falchi Bldg. Co., 730 N.Y.S.2d 827, 831 (Sup. Ct.

2001); Wal-Mart Stores, Inc. v. Goodman, 789 So.2d 166, 176 (Ala. 2000);

Guillory v. Dillard’s Dep't Store, Inc., 777 So.2d 1 (La. Ct. App. 2000);

Oliver v. Stimson Lumber Co., 993 P.2d 11 (Mont. 1999); Holmes v.

Amerex Rent-A-Car, 710 A.2d 846 (D.C. 1998); Thompson v. Owensby, 704

N.E.2d 134 (Ct. App. 1998), transfer denied, 726 N.E.2d 304 (Ind. 1999);

Boyd v. Travelers Ins. Co., 652 N.E.2d 267 (Ill. 1995); Coleman v. Eddy

Potash, Inc., 905 P.2d 185 (1995), overruled on other grounds, 34 P.3d 1148

(N.M. 2001); Smith v. Howard Johnson Co., 615 N.E.2d 1087 (Ohio 1993);

Weigl v. Quincy Specialties Co., 601 N.Y.S.2d 774 (Sup. Ct. 1998); Foster

v. Lawrence Mem’! Hosp., 809 F. Supp. 831, 838-839 (D. Kan. 1992);

Federated Mut. Ins. Co. v. Litchfield Precision Components, Inc., 456

N.W.2d 434 (Minn. 1990); Miller v. Allstate Ins. Co., 573 So.2d 24 (Dist. Ct.

App. 1990), review denied, 581 So.2d 1307 (Fla. 1991); La Raia v. Superior

Court, 722 P.2d 286 (Ariz. 1986); Hutchins v. Utica Mut. Ins. Co., 484

N.Y.S.2d 686 (App. Div. 1985); see also Henry v. Deen, 310 S.E.2d 326

(N.C. 1984) (recognizing “civil conspiracy” to destroy records and create

false records); see generally S. Nolte, The Spoliation Tort: An Approach

to Underlying Principles, 26 St. Mary's L.J. 351 (1995). Restrictions on

the assertion of tort claims against the government, see, e. g., Westfall Act,

28 U.S.C. 2679(d), might limit the ability of a litigant to recover on such

tort claims. That, however, is a function of long-established principles of

sovereign immunity, rather than a denial of access to the courts.

8 See, eg., Foster v. City of Lake Jackson, 28 F.3d 425, 431 n.9 (5th

Cir. 1994); Coates v. Johnson & Johnson, 756 F. 2d 524, 551 (7th Cir. 1985)

(“bad faith destruction of a document relevant to proof of an issue at trial

fraud is discovered after the litigation concludes, the case

may be reopened. See, e. g., Fed. R. Civ. P. 60(b).”

The government’s obligation under the Federal Rules of

Civil Procedure to respond to discovery requests once litiga-

tion commences is quite different from a perpetual, general-

ized constitutional duty to provide information before litiga-

tion begins at the behest of any public requestor. If a

member of the public wishes to impose a legally enforceable

duty of disclosure on the government, Congress has pro-

vided a formal mechanism for doing so in the Freedom of

Information Act, 5 U.S.C. 552. To be sure, in responding to a

FOIA request, the government may invoke several well-

gives rise to a strong inference that production of the document would

have been unfavorable to the party responsible for its destruction”); Goff

v. Harold Ives Trucking Co., 27 S.W.3d 387, 391 (Ark. 2000); Stender v.

Vincent, 992 P.2d 50, 57 (Haw. 2000); Meyn v. State, 594 N.W.2d 31, 34

(Iowa 1999); Cedars-Sinai Med. Ctr. v. Superior Court, 954 P.2d 511, 521

& n.4 (Cal. 1998); Kippenhan v. Chaulk Servs., Inc., 697 N.E.2d 527 (Mass.

1998); Schroeder v. Commonwealth, 710 A.2d 23, 26-27 & n.5 (Pa. 1998);

Trevino v. Ortega, 969 S.W.2d 950, 952 (Tex. 1998); Lauren Corp. v.

Century Geophysical Corp., 953 P.2d 200, 204 (Colo. Ct. App. 1998);

Monsanto Co. v. Reed, 950 S.W.2d 811, 815 (Ky. 1997); Souza v. Fred

Carries Contracts, Inc., 955 P.2d 3 (Ariz. Ct. App. 1997); Bachmeier v.

Wallwork Truck Ctrs., 544 N.W.2d 122, 126 (N.D. 1996); Henderson v.

Tyrrell, 910 P.2d 522, 531-532 (Wash. Ct. App. 1996); Brown v. Hamid, 856

S.W.2d 51, 57 (Mo. 1993); DeLaughter v. Lawrence County Hosp., 601

So.2d 818, 821-822 (Miss. 1992); Miller v. Montgomery County, 494 A.2d

761, 768 (Ct. Spec. App.), cert. denied, 498 A.2d 1185 (Md. 1985); Hay v.

Peterson, 45 P. 1073, 1076 (Wyo. 1896); see generally Fed. R. Civ. P. 37

(sanctions for failure to comply with discovery). Where the misconduct

delays discovery of the injury, equitable estoppel may be available. See,

e.g., Bell, 746 F.2d at 1255 (“the defendants’ concealment of the truth

precludes the application of res yudicata and the statute of limitations”).

9 The Constitution also establishes political checks on the respon-

siveness of government officials. Respondent’s allegations have been the

subject of both congressional and media scrutiny, and citizens retain the

power to vote out of office government officials deemed to be insufficiently

forthright or cooperative.

defined exemptions, including one for national security.

5 U.S.C. 552(b)(1). But the existence of those statutory ex-

emptions simply underscores the folly of creating a consti-

tutional right to litigation-enabling information through in-

formal requests. In administering such a constitutional right

to government information, “hundreds of judges,” guided

only by silent constitutional text, would be left “at large”

either to replicate and constitutionalize Congress’s FOIA

exemptions or “to fashion ad hoc standards, in individual

cases, according to their own ideas of what seems ‘desirable’

or expedient.” Houchins, 438 U.S. at 14.

Respondent chose to take only limited advantage of

FOIA. She delayed making any FOIA request for two

years, until the time when, even under her theory, emer-

gency injunctive relief was no longer viable. When she did

file her FOIA requests with the State Department, the CIA,

the National Security Council, and numerous other federal

agencies, she was granted expedited processing (see J.A. 34-

35), and received a large number of responsive documents.“

Had respondent “filed her FOIA requests immediately,” the

court of appeals concluded (Pet. App. 24a-25a)—and respon-

dent apparently agrees (Br. in Opp. 19 n.4)—she could have

“obtain[ed] the information” she claims was “necessary to

10 The Department of Defense provided 38 documents within five

months. Intelligence Oversight Bd., Report on the Guatemala Review 42

(June 28, 1996). The CIA provided 105 documents by February 1996, and

approximately 300 in total. Jbid. Although, as an advisory entity within

the Executive Office of the President, the National Security Council is not

subject to FOIA, see Armstrong v. Executive Office of the President, 90

F.3d 553 (D.C. Cir. 1996), cert. denied, 520 U.S. 1239 (1997), the Council

informs us that it responded to her request within six months by releasing

58 documents, and that it released an additional 49 documents two months

later. The State Department advises that, from June 1995 (six months

after her request) to May 1997, it released more than one thousand

documents to respondent and, by November 1997, had released more than

2700 documents in whole or in part.

seek an injunction in time to save her husband’s life.” Re-

spondent now seeks to lay responsibility for the delay at the

feet of the government (Pet. App. 24a-25a), but that delay

resulted from her voluntary choice. FOIA requests can be

filed at any time, by any person, for any reason, without any

" prerequisite showing of knowledge or need. Respondent

chose to forgo that statutory remedy, and to seek informa-

tion solely through informal contacts with government

officials. Those informal channels and FOIA, however, are

not mutually exclusive. In any event, respondent’s “fail{ure]

to pursue aggressively all of [her] legal remedies in the face

of what is admittedly a novel legal situation cannot be the

basis for visiting liability upon the [petitioners].” Crowder v.

Sinyard, 884 F.2d 804, 815 (5th Cir. 1989), cert. denied, 496

U.S. 924 (1990).

In short, there is no need to convert the Due Process

Clause into a Freedom of Information Act, a civil discovery

rule, an obstruction of justice law, or a state tort law. Doing

so would ignore the Court’s “frequent admonition that the

Due Process Clause is not merely a ‘font of tort law.’”

College Sav. Bank v. Florida Prepaid PostSecondary Educ.

Expense Bd., 527 U.S. 666, 674 (1999) (quoting Paul v.

Davis, 424 U.S. 693, 701 (1976)). Moreover, challenges like

those asserted here against high-level “[E]}xecutive [Branch]

action * * * raise a particular need to preserve the consti-

tutional proportions of constitutional claims.” Lewis, 523

US. at 847-848 n.8.

c. Respondent’s due process claim suffers from an addi-

tional infirmity: she has failed to demonstrate any “actual

injury.” Casey, 518 U.S. at 349; see also Crawford-El v.

Britton, 523 U.S. 574, 593 (1998) (“proof of an improper

motive is not sufficient to establish a constitutional violation

—there must also be evidence of causation”). Respondent

never filed, or even identified, any legally viable claim that

was prejudiced by the alleged withholding of information.

See Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731

742-743 (1983) (right of access to the courts protects only

“well-founded” lawsuits that have a “reasonable basis” in

fact or law). Respondent’s complaint asserts in vague terms

only that officials deceived her in order to avoid “public

embarrassment, censure and/or legal liability,” J.A. 32, and

that the “concealment * * * foreclosed her from effectively

seeking adequate legal redress” to prevent Bamaca’s execu-

tion, J.A. 44. At oral argument before the court of appeals

respondent’s counsel “clarified” that, but for the nondis-

closures, respondent “could have sought an emergency

injunction based on an underlying tort claim for intentional

infliction of emotional distress.” Pet. App. 24a. No explana-

tion was given as to how or why that tort suit would have

prevented the execution of Bamaca by Guatemalan soldiers

however.

Furthermore, even assuming that the argument of counsel

may substitute for the allegations of the complaint, no such

tort action lies against the United States. The Federal Tort

Claims Act excludes such claims. See 28 U.S.C. 2680(h)

(intentional torts excepted, including claims arising out of

“misrepresentation”);" 28 U.S.C. 2680(k) (exception for

claims arising in a foreign country). Nor does that Act

authorize injunctive relief.” More fundamentally, the claim

” See also Block v. Neal, 460 U.S. 289, 296 (1983) (“the essence of an

action for misrepresentation, whether negligent or intentional, is the

communication of misinformation on which the recipient relies”); —

Lazear v. FBI, 851 F.2d 1202, 1207 (9th Cir. 1988); Metz v. United States

788 F.2d 1528, 1534-1535 (11th Cir.), cert. denied, 479 US. 930(1986).

2 See 28 U.S.C. 1346(b)(1) (Supp. V 1999); Hatahley ited States

351 U.S. 178, 182 (1956); Talbert v. Na — 932 Fed * —

(4th Cir. 1991); Edelman v. Federal Hous. Admin., 382 F. 2d 594 596-597

(2d Cir. 1967); see also 5 U.S.C. 702; Larson v. Domestic & Foreign

Commerce Corp., 337 U.S. 682, 689-695 (1949). But see U.S. Information

— v. Kre, 989 F.2d 1211 (D.C. Cir. 1993), cert. denied, 510 U.S. 1109

is illusory, for it apparently would seek to have a federal

court order Executive Branch foreign policy and intelligence

officials to direct a foreign government to alter its treatment

of one of its own citizens engaged in active rebellion against

that government. No such justiciable cause of action or re-

medial power exists. See, e.g., Department of the Navy v.

Egan, 484 U.S. 518, 529-530 (1988) (“foreign policy [is] the

province and responsibility of the Executive”); Chicago & S.

Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111

(1948) (“[TJhe very nature of executive decisions as to for-

eign policy is political, not judicial.”). See generally Totten v.

United States, 92 U.S. 105 (1875).

The right of access to the courts, moreover, is functionally

a right to judicial process. For this reason, the lower courts

that have recognized a right-to-access violation in the con-

text of a government cover-up generally have done so when

the plaintiff actually attempted to file a lawsuit, and several

courts have treated the filing of such a lawsuit as an

indispensable predicate of the claim. See Swekel v. City of

River Rouge, 119 F.3d 1259, 1264 (6th Cir. 1997) (unless a

plaintiff makes “some attempt to gain access to the courts

* * * how is this court to assess whether such access was in

fact ‘effective’ and ‘meaningful’?”), cert. denied, 522 U.S.

1047 (1998); Vasquez v. Hernandez, 60 F.3d 325, 329 (7th Cir.

1995) (availability of state tort action precludes denial of

access to the courts claim), cert. denied, 517 U.S. 1156 (1996).

Such a requirement is appropriate because, like analogous

Fifth Amendment rights, a constitutional violation does not

occur unless and until it is shown that respondent was incap-

able of seeking redress from the courts.“ In addition, the

18 See also Sovereign Immunity: Hearings Before the Subcomm. on

Admin. Practice and Procedure of the Senate Comm. on the Judiciary,

91st Cong. 2d Sess. 135 (1970).

4 See, e. g., Williamson County Reg Planning Comm n v. Hamilton

Bank, 473 U.S. 172, 195 (1985) (violation of the Just Compensation Clause

actual or attempted lawsuit gives the court a concrete, non-

speculative basis for evaluating whether there was ever a

viable lawsuit to present to the courts. In the absence of any

predicate lawsuit, respondent asks this Court to speculate as

to whether she ever could have pled a case that could have

overcome the patent justiciability, sovereign immunity, and

national security barriers to her claim, and to declare that

her purely hypothesized lawsuit was unconstitutionally frus-

trated solely by petitioners’ allegedly misleading responses

to informal requests for information. Cf. Virginia Bank-

shares, Inc. v. Sandberg, 501 U.S. 1083, 1092 (1991) (noting

“{hjindsight’s natural temptation to hypothesize” litigable

injury); Blue Chip Stamps v. Manor Drug Stores, 421 U.S.

723, 735 (1975) (requiring concrete injury that is not amen-

able to “subjective hypothesis” to cabin scope of implied

cause of action). Such conjecture provides a tenuous basis

for the development of constitutional jurisprudence.

3. The Court of Appeals’ Rule Would Significantly Chill

and Disrupt Communications Between Citizens and

Government Officials

On a daily basis, countless Members of Congress,

Executive Branch officials, and other government personnel

respond to an endless stream of inquiries and requests for

information from constituents, the press, and the general

public. That constant dialogue and flow of information be-

tween government and the governed advances core prin-

ciples of a democratic society by enhancing the knowledge of

government decisionmakers, promoting governmental

responsiveness to the public, identifying problems and

“is not complete until “the owner has unsuccessfully attempted to obtain

just compensation through the procedures provided by the State”);

Hudson v. Palmer, 468 U.S. 517, 583 (1984) (State’s deprivation of prop-

erty “is not complete until and unless it provides or refuses to provide a

suitable postdeprivation remedy”).

solutions for governmental action, and encouraging citizen

involvement in the political process.

The court of appeals’ decision threatens to paralyze such

interchanges. Officials frequently must advise a requester

that investigation is necessary before responding further.

Resource limitations, rules governing privileged or classified

material, or simple human oversight may often prevent a

comprehensive response to public inquiries. The court of

appeals’ decision would transform such responses into po-

tential deprivations of unarticulated constitutional rights,

which put the responding government officials at risk of

personal liability for compensatory and punitive damages.

Unlike FOIA requests or court orders, which place a

contextually limited duty on government officials to provide

information, the decision below imposes a free-floating duty

in response to virtually any request. The court’s rule pre-

sumably would extend beyond requests for foreign affairs

and intelligence information, to requests by criminal defen-

dants, targets of law enforcement investigations, and pri-

soners. Criminal defendants might contend that any decep-

tive statements or “omissions” made by law enforcement

officers in an investigation somehow deprived them of their

due process rights in the subsequent prosecution. Cf.

Illinois v. Perkins, 496 U.S. 292, 297 (1990) (“Ploys to mis-

lead a suspect or lull him into a false sense of security,”

without more, do not violate Miranda.). Prisoners could add

this weapon to their arsenal by seeking information about

prison guards, prison security practices, informants, and

other inmates, which they could well insist is somehow

pertinent to pending or potential lawsuits. Nor would the

rule logically be limited to requests for information about

the government—the decision logically implicates any gov-

ernment failure to provide information about third parties

concerning, for example, contract or trade disputes.

The court of appeals’ recognized the potential torrent of

lawsuits and attempted to stem the tide by requiring plain-

tiffs to allege an intent to obstruct litigation. Pet. App. 62a.

But that requirement is of little practical utility. Such

allegations are “easy to allege and hard to disprove”

(Crawford-El, 523 U.S. at 585), and can easily frustrate

qualified immunity’s goal of terminating litigation at the

“earliest possible stage.” (Hunter, 502 U.S. at 227). Such a

rule is particularly unhelpful where privileged or classified

information is involved, because the government official may

actually “intend” to forestall litigation in the limited sense

that he broadly intends to delimit any opportunities for and

risks of disclosure—of which litigation is one. Accordingly,

the court of appeals’ rule would largely eliminate qualified

immunity in the situation where it is most vital—in the

handling of sensitive national security information. Cf.

Halperin v. Kissinger, 807 F.2d 180, 187-188 (D.C. Cir. 1986)

(Sealia, Circuit Justice) (adopting a purely objective qualified

immunity inquiry for national security cases).

Nor is it a sufficient answer, as the court of appeals sug-

gests (Pet. App. 24a), that government officials can answer

informational inquiries with a terse “no comment” and a

rigid refusal to assist members of the public. As an initial

matter, it is unfathomable that the Founders silently carved

into the Constitution such stultifying procedures for com-

munications between citizens and their government. Fur-

thermore, the perhaps unfortunate reality is that the

issuance of incomplete information and even misinformation

by government may sometimes be perceived as necessary to

protect vital interests. California Motor Transp., 404 U.S.

at 513 (“Misrepresentations” may be “condoned in the politi-

cal arena.”). Circumstances may require the issuance of false

information, for example, about the location and schedule of

the President and other high-level government officials, the

existence of intelligence operations or contacts with foreign

government officials, or the existence, character, scope, and

targets of an ongoing law enforcement investigation. Unless

the government adheres to an across-the-board refusal to

respond to any requests for information in such areas (again,

something the Constitution should be held to

ee the pubs might com laura to equate o cclestive

“no comment” response with an admission that sensitive

governmental operations or programs are underway.

B. Arguable Constitutional Obligation To Disclose

sponse To An Informal Request For Assistance Was

Not Clearly Established

Even if petitioners’ actions somehow violated the consti-

tutional right of access to the courts, the petitioners are

entitled to qualified immunity because that right was not

clearly established when the alleged conduct is said to have

occurred. For a right to be “clearly established” under

qualified immunity analysis, It he contours of the right must

be sufficiently clear that a reasonable official would under-

stand that what he is doing violates that right.” Anderson v.

Creighton, 483 U.S. 635, 640 (1987). IIln the light of pre-

existing law the unlawfulness must be apparent.” Ibid. If

government officials of reasonable competence could dis-

agree on whether the action is 1 be

recognized.” M v. Briggs, 475 U.S. 335, .

Applying aa coca petitioners should have been

accorded qualified immunity because “the constitutional

15 Congress recognized this problem when, in FOIA, it expressly

authorized the government to offer an effectively misleading response to

certain document requests if any other response would reveal highly

privileged law enforcement information. See 5 U.S.C. 552(c) (allowing the

government, under specified circumstances, to “treat the records as not

subject to” FOIA and thus to state that no records responsive to the

FOIA request exist); United States Dep't of Justice, Freedom of Informa-

tion Act Guide and Privacy Act Overview 454-455 (May 2000).

question presented by this case is by no means open and

shut.” Wilson v. Layne, 526 U.S. 603, 615 (1999). First, for

the reasons discussed above, “it is not obvious from the

general principles” (ibid.) of the right of access to the courts

that the extra-judicial withholding of information in response

to an informal request by an unincarcerated individual would

run afoul of that right. To the contrary, “the contours of the

right of judicial access could best be described as

‘nebulous.’” Foster v. City of Lake Jackson, 28 F.3d 425, 430

(5th Cir. 1994).

Second, controlling decisions of this Court pointed in the

opposite direction, refusing to supplement the right of access

with any generalized duty to provide information. Addivion-

ally, there was no controlling precedent from the District of

Columbia Circuit, and the authority from other circuits arose

in a substantially different factual and legal context. Both

Bell and Ryland involved the fabrication and falsification of

evidence of a crime by persons acting in violation of their

legal duties not to alter such evidence and with the intent to

frustrate colorable and eminently foreseeable causes of action

for judicial redress. Here, by contrast, government officials,

who were laboring under no legal duty to disclose the

requested material and in fact were legally obligated not to

disclose classified or privileged information, simply withheld

nonpublic foreign affairs and intelligence information in

response to an informal request for assistance, and did so

without any legally viable cause of action discernible on the

horizon. There thus was no “consensus of cases” (Wilson,

526 U.S. at 617) establishing the unlawfulness of petitioners’

conduct. Surely petitioners were not obligated to be more

“creative or imaginative in drawing analogies from pre-

viously decided cases,” Jenkins v. Talladega City Bd. of

Educ., 115 F.3d 821, 827 (11th Cir. ), cert. denied, 522 U.S.

966 (1997), than the district court (Pet. App. 43a-49a) and

Judges Henderson and Sentelle (id. at 70a-71a), who likewise

considered the few appellate precedents to be inapposite.

C. The Existence Of An Alternative Remedial Scheme For

Obtaining Information From The Federal Government

Precludes Inference Of A Bivens Action

The existence of statutory avenues for obtaining informa-

tion from the government not only obviates the need to

constitutionalize this area of the law, but a fortiori demon-

strates that there is no need for the Court to infer a Bivens

remedy for any constitutional right that may exist. This

Court has consistently refused to infer a Bivens remedy —

where Congress already has established an alternative

statutory mechanism for addressing the relevant problem.

See, e. g., Correctional Servs. Corp. v. Malesko, 122 S. Ct.

515, 520 (2001)."°

In Bush v. Lucas, 462 U.S. 367 (1983), this Court refused

to recognize a Bivens action for First Amendment violations

arising out of federal employment because the Civil Service

Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111,

already provided “comprehensive procedural and substan-

tive provisions” for disputes arising out of the federal em-

ployment relationship and gave “meaningful remedies

against the United States.” 462 U.S. at 368. Likewise,

Schweiker v. Chilicky, 487 U.S. 412 (1988), foreclosed a

Bivens remedy for due process violations in the admini-

stration of Social Security, even though Congress’s statutory

remedy largely restricted claimants to retrospective claims

for benefits and excluded damages. Id. at 424-425. It was

sufficient that “the design of a Government program sug-

16 Although this argument was not separately raised below, it is

logically intertwined with the Questions Presented—especially given the

relevance of alternative legal remedies to the constitutional question. As

a pure question of law, it is also appropriately considered in light of this

Court’s recent admonition in Malesko, 122 S. Ct. at 519, that Bivens

should not be expanded to new contexts. ‘

gests that Congress has provided what it considers adequate

remedial mechanisms,” id. at 423, even if Congress left an

“absence of statutory relief for a constitutional violation,” id.

at 421. Also, as noted above, the Court in Malesko recently

refused to infer a Bivens remedy against government con-

tractors. “So long as the plaintiff had an avenue for some

redress,” the Court explained, “bedrock principles of separa-

tion of powers foreclosed judicial imposition of a new

substantive liability.” 122 S. Ct. at 520 (emphasis added).

A Bivens remedy should not be inferred here because

Congress has created a comprehensive framework of statu-

tory mechanisms for seeking information from the federal

government. Of primary relevance, the Freedom of In-

formation Act establishes procedures for any member of the

public to obtain copies of non-exempt agency documents and

records, and embodies “a general philosophy of full agency

disclosure.” Department of Air Force v. Rose, 425 U.S. 352,

360 (1976) (quoting S. Rep. No. 813, 89th Cong., Ist Sess. 3

(1965)). FOIA sets a time frame for agency responses and

requires agencies to provide for expedited treatment where

appropriate. See 5 U.S.C. 552(a)(6)(A) and (E) (1994 & Supp.

V 1999). Judicial review of the agency’s response is avail-

able, and the court can “enjoin the agency from withholding

agency records and * * * order the production of any

agency records improperly withheld.” 5 U.S.C. 55 0a) (4) (B)

(1994 & Supp. V 1999). Where warranted, the court also

“may assess against the United States reasonable attorney

fees and other litigation costs reasonably incurred.” 5 U.S.C.

552) (4)(E).

The Privacy Act of 1974, 5 U.S.C. 552a (allowing access to

governmental records pertaining to the requesting in-

dividual), the Government in the Sunshine Act, 5 U.S.C.

552b (open meeting requirements), and the Federal Advi-

sory Committee Act, 5 U.S.C. App. at 1 (requiring access to

meetings and records of federal advisory committees),

provide additional mechanisms for obtaining information

about governmental programs and policies. Like FOIA,

each of those statutes makes judicial review available to

guarantee agency compliance and, with the exception of the

Federal Advisory Committee Act, enumerates specific re-

medies for agency noncompliance. See 5 U.S.C. 552a(d) and

(g); 5 U.S.C. 552b(b), (00), (h) and (i); 5 U.S.C. App. § 10;

Public Citizen v. Department of Justice, 491 U.S. 440 (1989)

(assuming the existence of an implied cause of action to

enforce the Federal Advisory Committee Act). Taken as a

whole, those statutory provisions broadly regulate what

government information members of the public can obtain,

how they can obtain it, when agencies must respond, and

what remedies are available for an agency’s failure to

comply.

Each statute also contains restrictions on the disclosure of

privileged and classified information, including the types of

foreign relations and intelligence information sought by

respondent here. See 5 U.S.C. 552(b)(1), (8) and (7); 5 U.S. C.

552a(k) (1), (2) and (3); 5 U.S.C. 552b(e) (I), (3) and (7); 5

U.S.C. App. § 10(b) and (d). With respect to intelligence in-

formation, in particular, Congress enacted the Central In-

telligence Agency Information Act, 50 U.S.C. 431, to moder-

ate FOIA’s operation in that sensitive context. See gener-

ally Sullivan v. CIA, 992 F.2d 1249 (1st Cir. 1993) (limiting

rights of next-of-kin requesters). Those statutes thus

reflect—as a judicially inferred cause of action under Bivens

cannot—a carefully calibrated congressional balance “be-

tween the right of the public to know and the need of the

Government to keep information in confidence.” John Doe

Agency v. John Doe Corp., 493 U.S. 146, 152 (1989). FOIA

also reflects Congress’s delicate remedial balance in

authorizing injunctive relief and attorneys’ fees, but not

damages, for the improper withholding of information. This

Court should be loath to upset that delicate balance by

ae a judicially crafted remedy, given the Consti-

n's express investment j security matters i

— — of national ty in

In short, respondent was never “a plaintiff in search o

remed y.” Malesko, 122 S. Ct. at 523. To the contrary, —

all times had available to her “an elaborate remedial system

that has been constructed step by step, with careful atten-

tion to conflicting policy considerations,” Bush, 462 U.S. at

388, and that she acknowledges (Br. in Opp. 19 n.4) was

capable of providing her all of the information to which she

was legally entitled—if she had invoked the procedures in a

timely manner.

Finally, supplementation of that elaborate and inter-

locking system of disclosure obligations would be doubly

inappropriate here, because respondent predicates her claim

for constitutional relief on an alleged intentional withholding

of information pertaining to foreign affairs and intelligence

operations. This Court will not infer a Bivens remedy where

there are “special factors counselling hesitation.” Schweiker

487 U.S. at 423; see also Bivens, 403 U.S. at 396-397. In

United States v. Verdugo-Urquidez, 494 U.S. 259, 273-274

( 1990), this Court suggested that matters pertaining to for-

eign affairs and foreign activities could be special factors

counseling hesitation in inferring a Bivens remedy, in light of

the judiciary’s traditional reluctance to delve into such

matters. For similar reasons, this Court has declined to

17 See Waterman S.S. Corp., 333 U.S. at 111 (“Su isi

wholly confided by our Constitution to the 2 — of the

government, Executive and Legislative. They are delicate, complex, and

involve large elements of prophecy. They are and should be undertaken

only by those directly responsible to the people whose welfare they ad-

vance or imperil. They are decisions of a kind for which the Judiciary has

to belong in the domain of political power not subject to judicial intrusion

— v. Madison, 5 U.S. (1 Cranch) 187, 165-166

infer a Bivens remedy for actions incident to military service

because “congressionally uninvited intrusion into military

affairs by the judiciary is inappropriate.” United States v.

Stanley, 483 U.S. 669, 683 (1987).

The Executive Branch actions for which respondent seeks

a judicially imposed Bivens remedy all pertain to the with-

holding of and communications about the United States’

relations with a foreign government, intelligence operations

and activities between the two governments, the existence

of alleged CIA operatives or paid informants within a foreign

government, and the knowledge of United States officials

about the foreign government’s treatment and interrogation

of a foreign national engaged in insurrection against a recog-

nized foreign government. Few matters could be less appro-

priate for judicial superintendence. That fact would have

been obvious had respondent filed a timely FOIA request or

attempted a timely lawsuit. The result should be no

different because respondent instead has asked the courts to

mint a novel constitutional tort.

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted.