# Amicus Curiae Brief — Christopher v. Harbury

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0500%3A09

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2002
- **Citation:** 536 U.S. 403

## Text

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.

N

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”

11

2¹

IV

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

VI
Cases—Continued: Page

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

1
*— 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

16

15
14

7
16

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)

11
13
13

15

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

19

21

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

U.
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,

1

2

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

3

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”).

4

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

5

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.

6

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-

7

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.

8

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.

10

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-

—

11

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

12

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.”).

13

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“).

14

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).

— — — —

15

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

16

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.

17

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.

18

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.

19

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

21

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. ‘

27

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.
THEODORE B. OLSON
Solicitor General
ROBERT D. MCCALLUM, JR.
Assistant Attorney General
PAUL D. CLEMENT
Deputy Solicitor General
PATRICIA A. MILLETT

Assistant to the Soliciter
General

BARBARA L. HERWIG
ROBERT M. LOEB
Attorneys

JANUARY 2002

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0500%3A09. Public record. Not legal advice.