United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed April 6, 2001
No. 99-5307
Jennifer K. Harbury, on her own behalf and as
administratrix of the Estate of Efrain Bamaca-Velasquez
Appellant
v.
John M. Deutch, Director,
Central Intelligence Agency (CIA), et al.,
Appellees
---------
Before: Edwards, Chief Judge, Ginsburg and Tatel,
Circuit Judges.
O R D E R
Upon consideration of appellees' petition for rehearing filed
January 26, 2001, it is
ORDERED that the petition be denied.
The Government claims that the panel opinion "marks a
significant and potentially dangerous expansion of the consti-
tutional 'right of access' to the courts," creating an "open-
ended constitutional tort for every instance where a govern-
ment official conceals information, or obstructs a judicial
proceeding." Appellees' Petition for Reh'g at 1, 7. This is
incorrect. To begin with, as a procedural matter, the opinion
will not open the courts to a flood of constitutional access to
courts claims. It endorses the general requirement that
prior to bringing claims for deprivation of access to courts
based on alleged cover-ups, plaintiffs must first press their
underlying claims to ensure that the alleged cover-ups in fact
prejudiced their ability to seek relief. See Harbury v.
Deutch, 233 F.3d 596, 608-09 (D.C. Cir. 2000). The panel
opinion permits Harbury to bring her access to courts claim
now only because, if the facts she pleads are correct (this case
is here on a motion to dismiss), defendants' actions "complete-
ly foreclosed" one of her primary avenues of relief. Id at 609.
Moreover, as a substantive matter, the opinion distinguishes
Harbury's situation from those where a plaintiff, despite a
cover-up, has enough information to file a "John Doe" suit.
Id. at 609-10. It thus expresses no view on the constitution-
ality of cover-ups that do not "conceal[ ] most of the essential
facts" of a cause of action until bringing it would be "futile."
Id. (internal quotation marks omitted). In addition, and
most important, the opinion explicitly and repeatedly limits
its holding to situations where--as Harbury alleges--defen-
dants both affirmatively mislead plaintiffs and do so for the
very purpose of protecting government officials from suit.
See id. at 608, 610, 611.
The Government also alleges that cover-ups of the type
alleged here are sometimes "necessary in order to protect the
national security or to maintain the secrecy of classified
intelligence sources or methods." Appellees' Petition for
Reh'g at 2. Accordingly, the Government argues, the panel
opinion threatens to "jeopardize foreign intelligence sources
and implicate foreign relations." Id. As the opinion express-
ly points out, however, the Government never claimed, either
before the district court or the panel, that the cover-up
Harbury alleges was necessary to maintain national security.
See Harbury, 233 F.3d at 610. Having not yet filed an
answer in this case, the Government is free to assert a
national security defense when it does so.
Next, the Government claims that Harbury has failed to
"point to a colorable claim that has been prejudiced by the
alleged cover-up" and that "the injunctive action which was
allegedly thwarted is not even colorable." Appellees' Petition
for Reh'g at 9, 14. But Harbury specifically claimed in her
complaint that the alleged cover-up "foreclosed [her] from
effectively seeking adequate legal redress." See Complaint
p 98, cited in Harbury, 233 F.3d at 609. Such a "short and
plain statement of the claim," Fed. R. Civ. P. 8(a)(2), providing
sufficient information to allow a party to "frame a responsive
pleading," Fed. R. Civ. P. 12(e), is all the federal rules require.
See Carribean Broad. Sys., Ltd. v. Cable & Wireless PLC, 148
F.3d 1080, 1085-86 (D.C. Cir. 1998). Moreover, on appeal--
and without response from the Government--Harbury ampli-
fied this claim, explaining in her brief that if she had "learned
of her husband's situation while he was still alive, she would
have immediately initiated court proceeding[s] seeking emer-
gency injunctive relief." Appellant's Opening Brief at 35. At
oral argument, her counsel further explained that such an
injunction could have been based on an underlying claim for
intentional infliction of emotional distress. Harbury, 233
F.3d at 609. On a motion to dismiss, "the factual allegations
of the complaint must be taken as true, and any ambiguities
or doubts concerning the sufficiency of the claim must be
resolved in favor of the pleader," Doe v. United States Dept.
of Justice, 753 F.2d 1092, 1102 (D.C. Cir. 1985), and Har-
bury's proposed action for injunctive relief to save her hus-
band's life is on its face colorable. See Harbury v. Deutch,
No. 96-00438 at 27-28 (D.D.C. Mar. 23, 1999) (denying the
Government's motion to dismiss Harbury's tort claims). On
remand, it is certainly open to the Government to argue--if
the record as it is developed so allows--that Harbury's
hypothetical injunctive action would have been so unlikely to
succeed that she cannot plausibly claim that defendants'
alleged cover-up was a "substantial cause of [her] failure to
obtain judicial relief." Bell v. City of Milwaukee, 746 F.2d
1205, 1263 n.72 (7th Cir. 1984).
Our dissenting colleagues suggest that "[n]o United States
court could reach the alleged tortfeasors, Guatemalan nation-
als on Guatemalan soil, in order to prevent their killing
Harbury's husband, another Guatemalan national." Harbury
v. Deutch, No. 99-5307, slip op. dissent at 1 (Henderson, J.,
dissenting from denial of rehearing en banc). But as the
intentional infliction of emotional distress claims Harbury also
pleaded in her complaint demonstrate, see Harbury, 233 F.3d
at 600, the alleged tortfeasors here were domestic: the
government officials who allegedly conspired with, collaborat-
ed with, directed, and paid Bamaca's torturers. See Com-
plaint at p 200 ("The CIA Defendants' collaborating and/or
conspiring with and/or directing Julio Roberto Alpirez and/or
others who intentionally and secretly imprisoned, tortured
and extrajudicially executed Mr. Bamaca constituted extreme
and outrageous conduct."). Harbury's complaint also sug-
gests that in her action for intentional infliction of emotional
distress, she could have alleged injury not just to Bamaca, but
also to herself; in other words, Harbury, a United States
citizen, could have sought relief in a United States court on
her own behalf against United States government officials.
See Complaint at p 201 ("This extreme and outrageous con-
duct was engaged in intentionally or recklessly and caused
both Mr. Bamaca and Plaintiff to endure severe physical and
emotional distress."). As Harbury explains in her response
to the Government's petition, an injunctive action against
these officials might have saved Bamaca's life by enjoining
them from "directing, conspiring in, and paying for the con-
tinued secret detention and torture of her husband, and
direct[ing] [them] to require the assets on the payroll to stop
engaging in such behavior." Appellant's Response to Petition
for Reh'g at 9. As we stated earlier, the Government is free
to argue on remand that, either because of the nature (or
absence) of the relationship between Bamaca's torturers and
the CIA defendants, or for some other reason, the chances of
this happening were too remote to justify awarding Harbury
relief.
The Government next suggests that it is unclear "what
legal liability the State Department and NSC officials were
attempting to avoid," since "[Harbury's] state law tort claims
regarding the torture of her husband are all directed at the
CIA defendants." Appellees' Petition for Reh'g at 11. But
access to courts claims are not restricted to cases in which
officials are alleged to have covered up their own illegal
actions, and the Government itself acknowledges that two of
the cases it cites, Bell, 746 F.2d at 1256-58, and Ryland v.
Shapiro, 708 F.2d 967, 969 (5th Cir. 1983), involve cover-ups
of "coworkers' wrongdoing." See Appellees' Petition at 7.
Here, Harbury alleges that all three defendant agencies
worked together to conceal Bamaca's capture and torture in
order to obtain the maximum amount of information from
him. See Complaint at p 167 ("[State and NSC defendants]
have a long-standing policy, pattern or practice of providing
false information, through fraudulent statements and inten-
tional omissions, as to the fate of anyone injured or killed
through the CIA's long-standing policy, pattern or practices
related to the extraction of information."); id. at p 67, quoted
in Harbury, 233 F.3d at 600 ("[State and NSC defendants]
intentionally misled [Harbury] ... because they did not want
to threaten their ability to obtain information from Mr.
Bamaca."). Moreover, after their initial cover-up of Bamaca's
capture, State and NSC defendants themselves might have
been subject to direct tort liability for their alleged conceal-
ment and misrepresentation. See Complaint at p p 217-37
(stating tort claims against these defendants for intentional
infliction of emotional distress, intentional misrepresentation,
negligent misrepresentation, and constructive fraud). In al-
legedly deceiving Harbury, they thus might have been at-
tempting to avoid their own legal liability as well.
As to Harbury's allegations of defendants' intent, although
the Government is correct that under Crawford-El v. Britton,
523 U.S. 574, 598 (1998), a district court can require a plaintiff
to support her complaint with "specific, nonconclusory factual
allegations," Appellees' Petition for Reh'g at 11, the district
court here did this only with respect to Harbury's conspiracy
allegations against the CIA defendants--not with respect to
Harbury's access to courts claim. Harbury v. Deutch, No.
96-00438 at 5 (D.D.C. July 20, 1998) (order requiring plaintiff
to "put forward specific, nonconclusory factual allegations
that establish improper motive" of CIA defendants). More-
over, Harbury expressly alleged that "internal [State and
NSC] memoranda" reveal the defendants' intent to mislead
Harbury. Harbury, 233 F.3d at 600.
Finally, with respect to the Government's qualified immu-
nity arguments, neither the fact that defendants did not "fa-
bricat[e] evidence," Appellees' Petition for Reh'g at 14, nor
the fact that the alleged torture occurred outside the United
States is enough to entitle the defendants to qualified immu-
nity. Under Anderson v. Creighton, the "very action in
question" need not have been previously held unlawful;
rather, the law need only allow officials " 'reasonably [to] an-
ticipate when their conduct may give rise to liability for
damages.' " 483 U.S. 635, 639-40 (1987) (quoting Davis v.
Scherer, 468 U.S. 183, 195 (1984)). Here, defendants alleg-
edly acted affirmatively to mislead Harbury and did so with
a specific intent to deny her access to a federal court.
Under existing caselaw, such action was clearly unconstitu-
tional. See Delew v. Wagner, 143 F.3d 1219, 1222 (9th Cir.
1998) (following the Sixth Circuit and stating that "the Con-
stitution guarantees plaintiffs the right of meaningful access
to the courts, the denial of which is established where a
party engages in pre-filing actions which effectively covers-
up evidence and actually renders any state court remedies
ineffective"); Swekel v. City of River Rouge, 119 F.3d 1259,
1262 (6th Cir. 1997) ("if a party engages in actions that
effectively cover-up evidence ... they have violated his right
of access to the courts"); Vasquez v. Hernandez, 60 F.3d
325, 328 (7th Cir. 1995) ("[E]fforts by state actors to impede
an individual's access to courts ... may provide the basis for
a constitutional claim under 42 U.S.C. s 1983."); Crowder v.
Sinyard, 884 F.2d 804, 812 (5th Cir. 1989) ("[I]f state offi-
cials wrongfully and intentionally conceal information crucial
to a person's ability to obtain redress through the courts,
and do so for the purpose of frustrating that right, and that
concealment and the delay engendered by it substantially
reduce the likelihood of one's obtaining the relief to which
one is otherwise entitled, they may have committed a consti-
tutional violation."); Ryland, 708 F.2d at 973 (constitutional
right of access violated where "agents of the state intention-
ally engaged in conduct that interfered with [the] exercise of
[the] constitutionally protected right to institute a wrongful
death suit"); cf. Barrett v. United States, 798 F.2d 565, 575
(2d Cir. 1986) ("[G]overnment officials," though "not under
any duty to volunteer to [plaintiff] information that would
alert it to the existence of a claim against the federal gov-
ernment and certain of its officials for ... wrongful death,"
"[o]n the other hand ... were not free to arbitrarily inter-
fere with [plaintiff's] vindication of its claims. Unconstitu-
tional deprivation of a cause of action occurs when govern-
ment officials thwart vindication of a claim by violating basic
principles that enable civil claimants to assert their rights
effectively.").
In arguing that defendants are entitled to qualified immuni-
ty, our dissenting colleagues again rely on the notion that the
tortfeasors here are foreign nationals: they suggest that
reasonable officials could have thought it constitutional to
cover up Bamaca's "captivity by foreign nationals on foreign
soil in order to keep [Harbury] from obtaining relief in a
United States court that would prevent her husband's subse-
quent murder on foreign soil at the hands of the foreign
nationals." Harbury, No. 99-5307, slip op. dissent at 2. But
again, Harbury does not allege that defendants violated her
right of access to courts by covering up the actions of foreign
nationals unassociated with the United States government.
Rather, she alleges that defendants are liable for misleading
her about the involvement of United States government offi-
cials who allegedly "engaged in, directed, collaborated and
conspired in, and otherwise contributed to" Bamaca's torture
and murder. See Complaint at p 49, quoted in Harbury, 233
F.3d at 599. Similarly, the legal liability defendants allegedly
intended to avoid was not the liability of Guatemalan nation-
als unassociated with the United States government, but
rather the liability of fellow United States Government offi-
cials for their involvement in Bamaca's torture.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk