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

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 6, 2005 Decided August 23, 2006

No. 05-5085

ALICE P. BROUDY, ET AL.,
APPELLANTS

v.

SUSAN H. MATHER, IN HER INDIVIDUAL AND OFFICIAL
CAPACITIES, ET AL.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 02cv02122)

David J. Cynamon argued the cause for appellants. With
him on the briefs was Douglas J. Rosinski.

Charles W. Scarborough, Attorney, U.S. Department of
Justice, argued the cause for appellees. With him on the brief
were Peter D. Keisler, Assistant General Counsel, Kenneth L.
Wainstein, U.S. Attorney, and Barbara L. Herwig, Attorney.

Before: GARLAND, BROWN and GRIFFITH, Circuit Judges.

Opinion for the court filed by Circuit Judge GRIFFITH.
 2

GRIFFITH, Circuit Judge: Between 1945 and 1962, hundreds
of thousands of members of the United States armed forces were
allegedly exposed to dangerous levels of atomic radiation:
about 220,000 while serving as occupying forces in Hiroshima
and Nagasaki, Japan at the end World War II and another
195,000 as a result of their participation in tests conducted more
recently by the military closer to home. Many of these soldiers
later became sick, and they sought to link their health problems
to their military service. But this case is not about whether they
should have received Government compensation for their
sicknesses. Rather, according to the plaintiffs’ complaint, it is
about whether Government officials denied them a
constitutional right of meaningful access to administrative
proceedings before the Department of Veterans Affairs (“VA”).

We conclude that the District Court was correct to dismiss
the plaintiffs’ claims. Plaintiffs cannot prove any set of facts
consistent with the allegations of their complaint that will
demonstrate that the defendants denied them a meaningful
opportunity to pursue their claims for compensation.

I.

Because we are reviewing the District Court’s decision to
dismiss the plaintiffs’ complaint, we must presume the
allegations in the complaint are true. Doe v. Dep’t of Justice,
753 F.2d 1092, 1102 (D.C. Cir. 1985). We set forth those
allegations below.

Following the 1945 atomic bombings of Hiroshima and
Nagasaki, hundreds of thousands of American troops entered
Japan as occupying forces. Beginning that same year and
continuing through 1962, the United States tested atomic
weapons in New Mexico, Nevada, and the Pacific Ocean. One
purpose of the tests was to determine the effects of atomic
 3

explosions on military operations, personnel, and equipment.
Participants were ordered to engage in a series of dangerous
activities, without full knowledge of the risks. For example,
plaintiffs allege that they were ordered to “board grossly
contaminated naval vessels within a few hours of a nearby
underwater atomic detonation; swim and dive in a lagoon . . .
contaminated with radioactive fallout . . . ; live and work on
ships . . . grossly contaminated with radioactive material . . . ; lie
in open trenches within a few hundred yards of an atomic
explosion; charge directly towards and through ‘ground zero’
within minutes of an atomic explosion; conduct extended
training in areas contaminated by fallout from dozens of atomic
detonations; and fly through roiling clouds of radioactive debris
within minutes of an atomic detonation.” Both groups—those
who served as occupation forces in Japan and those who
participated in military tests—were exposed to potentially
dangerous levels of atomic radiation.

During this period, the military performed medical tests on
many, if not all, of these veterans. Records of these tests
accurately describe the levels of radiation to which each veteran
was exposed. Sometime after the Government collected the data
from these tests—it is unclear from the complaint exactly
when—the nine named plaintiffs (or the survivors of these
plaintiffs)1 became sick and eight of the nine filed applications
for benefits with the VA2. The ninth plaintiff, Kathy

1
The complaint named ten plaintiffs, but one, Theodore J.
Dvorak, did not file a notice of appeal and his claims are not before us.
2
A veteran who becomes ill can file an application for
benefits with the VA. Sections 1110 and 1131 of Title 38, United
States Code, provide that, subject to certain conditions not relevant
here, the VA will pay compensation to veterans “[f]or disability
resulting from personal injury suffered or disease contracted in line of
 4

Jacobovitch, has not yet filed a claim on behalf of her deceased
father. Upon receiving plaintiffs’ applications, the VA, in
accordance with its regulations, see 38 C.F.R. § 3.311(a)(1),
(a)(2)(I), (a)(2)(ii),3 requested the test results for these plaintiffs

duty, or for aggravation of a preexisting injury suffered or disease
contracted in line of duty.” 38 U.S.C. § 1110 (emphasis added)
(describing the Government’s obligation to compensate wartime
veterans), § 1131 (emphasis added) (describing the Government’s
obligation to compensate peacetime veterans). The standard for
determining whether a veteran’s survivor is entitled to benefits is
similar: “When any veteran dies after December 31, 1956, from a
service-connected or compensable disability, the Secretary shall pay
dependency and indemnity compensation to such veteran’s surviving
spouse, children, and parents.” Id. § 1310(a) (emphasis added).
3
These subsections provide, in relevant part:
(a) Determinations of exposure and dose—
(1) Dose assessment. In all claims in which it is
established that a radiogenic disease first became
manifest after service and was not manifest to a
compensable degree within any applicable
presumptive period as specified in § 3.307 or § 3.309,
and it is contended the disease is a result of exposure
to ionizing radiation in service, an assessment will be
made as to the size and nature of the radiation dose or
doses. . . .
(2) Request for dose information. Where necessary
pursuant to paragraph (a)(1) of this section, dose
information will be requested as follows:
(i) Atmospheric nuclear weapons test participation
claims. In claims based upon participation in
atmospheric nuclear testing, dose data will in all
cases be requested from the appropriate office of the
Department of Defense.
 5

from the Department of Defense (“DoD”). But DoD never gave
these results to the VA. According to the plaintiffs, the
defendants intentionally covered them up.

In lieu of the actual test results, the DoD sent the VA “dose
reconstructions” for each of the plaintiffs, which it is required to
do when records of test results are unavailable. 32 C.F.R.
§ 218.1(d)(3). The DoD and the VA use dose reconstructions to
approximate a veterans’ level of exposure to radiation by
estimating the “size, type, design, and yield of the particular
atomic device; [the] time, distance, and shielding from the
detonation; the decay, distribution, and deposition of over 200
different radionuclides and fission products; and the potential
radiation exposure pathways.” Joint Appendix (“J.A.”) 32.
According to the plaintiffs, dose reconstructions are seriously
flawed. They minimize the veteran’s level of exposure by
assuming, for example, that all who worked in contaminated
areas wore protective clothing, even though photographs
evidence that was not so. Consequently, they “produce[] results
having little, if any, relation to the radiation dose actually
received by the individual.”

Using these allegedly faulty dose reconstructions, VA
officials concluded that six of the eight plaintiffs who have filed
a claim had not demonstrated that their illnesses “resulted from
exposure to radiation in service,” 38 C.F.R. § 3.311(c)(1)(I),
and, as a result, rejected (or partially rejected) their claims. The
VA has yet to rule on the claims of the two other plaintiffs who

(ii) Hiroshima and Nagasaki occupation claims. In
all claims based on participation in the American
occupation of Hiroshima or Nagasaki, Japan, prior to
July 1, 1946, dose data will be requested from the
Department of Defense.
 6

have filed applications for benefits. As mentioned, the ninth
plaintiff, Kathy Jacobovitch, has not yet filed a claim. She
intends to do so when she obtains the actual dosage records.

In 2002, the plaintiffs filed a putative class action lawsuit in
the District Court against two groups of Government officials.
The first group consisted of officials who allegedly covered up
the actual dosage data: Steven M. Younger, the Director of the
Defense Threat Reduction Agency (“DTRA”), the agency within
the Department of Defense with responsibility for preparing the
dose reconstructions; Michael Schaeffer, a program manager in
the DTRA’s Technology Development Directorate; and other
unnamed Government officials. The second group consisted of
officials who allegedly assisted in the cover-up and knowingly
used the flawed dose reconstructions: Susan Mather, the VA’s
Chief Public Health and Environmental Hazards Officer; Neil
Otchin, the VA’s Clinical Matters Program Chief; Robert
Roswell, the VA’s Under Secretary for Health; and other
unnamed Government officials. The complaint alleged that both
groups of defendants have violated the plaintiffs’ constitutional
right of access to the courts. In the plaintiffs’ view, this right of
access extends to veterans benefits proceedings and prohibits
officials from acting in a way that either blocks or makes
meaningless access to those proceedings. As relief, plaintiffs
sought (1) a declaration that the actions taken by the defendants
were unconstitutional, (2) immediate release of all relevant
records and documents, (3) an injunction prohibiting the
defendants from withholding records of actual dosage data, (4)
compensatory and punitive damages, (5) costs and reasonable
attorneys’ fees, and (6) additional relief as the District Court
deemed proper and just.

The defendants moved to dismiss the plaintiffs’ claims and
made three arguments relevant here. First, they argued that the
District Court did not have jurisdiction to hear plaintiffs’ claims
 7

because 38 U.S.C. § 511(a) provides that only the Board of
Veterans’ Appeals, the Court of Appeals for Veterans’ Claims,
the Federal Circuit, and the United States Supreme Court have
jurisdiction to “review” “decision[s] of the Secretary [of the
VA] as to” any “question of law [or] fact necessary to a decision
by the Secretary under a law that affects the provision of
benefits.” Second, the defendants argued that a claim for
damages against the Government officials under the Supreme
Court’s decision in Bivens v. Six Unknown Named Agents of the
Federal Bureau of Narcotics, 403 U.S. 388, 396 (1971), should
have been barred in this case because Congress has already
created a comprehensive administrative scheme to compensate
veterans. Third, the defendants argued that they were entitled to
qualified immunity because the allegations in the plaintiffs’
complaint failed to state a constitutional claim for denial of
access.

The District Court held it lacked jurisdiction under 38
U.S.C. § 511(a). As an alternative ground, the District Court
held that plaintiffs were barred from bringing a Bivens claim for
damages against the Government officials.

A few days before the District Court issued its decision,
another District Court in this Circuit reached opposite
conclusions in a case involving substantially similar facts and
legal issues. Vietnam Veterans of Am., Inc. v. McNamara, No.
02-2123, 2003 WL 24063631 (D.D.C. Sept. 30, 2003). The
Vietnam Veterans Court held that § 511(a) posed no
jurisdictional bar to its hearing the denial-of-access claims
raised by the plaintiffs in that case and that plaintiffs in that case
had stated a claim for relief under Bivens. Id. at *4-6. In light
of the contrary decision in Vietnam Veterans, the plaintiffs in
this case moved for reconsideration. The District Court granted
the motion and held, consistent with Vietnam Veterans, that
neither § 511(a) nor Bivens barred the plaintiffs’ pursuit of
 8

denial-of-access claims. Broudy v. Mather, 335 F. Supp. 2d 1,
4-6 (D.D.C. 2004).

But that was not the end of the matter. After the District
Court’s decision on reconsideration, the defendants filed a
“Motion for Ruling on Defense of Qualified Immunity”
reminding the District Court that the defendants had also sought
to dismiss the complaint based upon qualified immunity.
Additionally, the defendants argued, for the first time, that they
were entitled to absolute immunity. The District Court agreed
and dismissed the case, holding that the defendants enjoyed both
qualified and absolute immunity: absolute immunity because
they “‘perform[ed] functions closely associated with the judicial
process’” Broudy v. Mather, 366 F. Supp. 2d 3, 9, 11 (D.D.C.
2005) (quoting Cleavinger v. Saxner, 474 U.S. 193, 200 (1985)),
and qualified immunity because the plaintiffs had failed to
allege a violation of a clearly established constitutional right, id.
at 11-13.

Plaintiffs filed a timely notice of appeal. They argue that
the defendants were not entitled to either qualified or absolute
immunity. The defendants respond that both immunities apply,
the District Court did not have jurisdiction to hear the case under
38 U.S.C. § 511(a), and, in any event, the plaintiffs failed to
state a claim under Bivens because “special factors counsel
hesitation” towards imposing liability for the type of denial of
access the plaintiffs allege.

II.

We begin, as we must, with the question whether the
District Court had jurisdiction to consider the plaintiffs’ claims.
See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94
(1998) (holding that courts must first decide “as a threshold
matter” whether there is jurisdiction to hear a case). In their
 9

complaint, the plaintiffs asserted that the District Court had
jurisdiction pursuant to the general federal question jurisdiction
statute, 28 U.S.C. § 1331, which provides that “[t]he district
courts shall have original jurisdiction of all civil actions arising
under the Constitution, laws, or treaties of the United States.”
The defendants argue, however, that another statute, 38 U.S.C.
§ 511(a), barred the District Court from hearing the plaintiffs’
claims. Section 511(a) states:

The Secretary [of Veterans Affairs] shall decide
all questions of law and fact necessary to a
decision by the Secretary under a law that affects
the provision of benefits by the Secretary to
veterans or the dependents or survivors of
veterans. Subject to subsection (b), the decision
of the Secretary as to any such question shall be
final and conclusive and may not be reviewed by
any other official or by any court, whether by an
action in the nature of mandamus or otherwise.

38 U.S.C. § 511(a).4

4
Subsection (b) provides four exceptions, none of which
would allow a federal district court to review the kind of decisions of
the Secretary at issue here. The first exception gives the Federal
Circuit jurisdiction over Administrative Procedure Act review of VA
rulemaking. 38 U.S.C. § 511(b)(1). The second gives federal district
courts jurisdiction over suits involving Veterans’ Group Life
Insurance, National Service Life Insurance, and U.S. Government life
insurance. Id. § 511(b)(2). The third gives federal district courts
jurisdiction over suits involving VA housing and small business loans.
Id. § 511(b)(3). The fourth, id. § 511(b)(4), allows veterans or their
dependents or survivors to appeal adverse decisions to the Board of
Veterans’ Appeals, id. § 7104(a), then to the Court of Appeals for
Veterans’ Claims, id. § 7252(a), and then to the Federal Circuit, id.
§ 7292(c). Finally, if the Federal Circuit denies their claims, veterans
 10

In the defendants’ view, § 511(a) prevents a district court
from exercising jurisdiction over any case that would require it
to decide a “question of law [or] fact” that arises “under a law
that affects the provision of benefits.” Put another way, the
defendants argue that § 511(a) gives the Secretary exclusive
jurisdiction to decide these questions. Because the plaintiffs’
denial-of-access claims would require the District Court to
decide factual and legal issues regarding the provision of
veterans benefits, the defendants contend that § 511(a) should
have prevented the District Court from exercising jurisdiction
over such claims.

This argument misreads the statute. Section 511(a) does not
give the VA exclusive jurisdiction to construe laws affecting the
provision of veterans benefits or to consider all issues that might
somehow touch upon whether someone receives veterans
benefits. Rather, it simply gives the VA authority to consider
such questions when making a decision about benefits, see
§ 511(a) (“[t]he Secretary shall decide all questions of law and
fact necessary to a decision by the Secretary under a law that
affects the provision of benefits by the Secretary to veterans or
the dependents or survivors of veterans”), and, more importantly
for the question of our jurisdiction, prevents district courts from
“review[ing]” the Secretary’s decision once made, see id.
(except as provided by subsection (b), “the decision of the
Secretary as to any such question shall be final and conclusive
and may not be reviewed by any other official or by any court”)
(emphasis added).

Our precedent, although not addressed by the plaintiffs,
provides as much. In McKelvey v. Turnage, 792 F.2d 194 (D.C.
Cir. 1986), aff’d on other grounds, Traynor v. Turnage, 485 U.S.
535 (1988), we held that § 211(a), the predecessor to § 511(a),

or their dependants can petition the Supreme Court for certiorari. Id.
 11

did not bar a District Court suit challenging the legality of
certain VA regulations because the Secretary had not actually
decided the issue before the District Court.5 In that case, a
veteran named James McKelvey asked the VA for an extension
to the limitations period for filing for educational assistance
benefits. VA regulations allow for extensions for veterans who
were unable to use their benefits within ten years of their
discharge from the armed services “because of a physical or
mental disability which was not the result of such veteran’s own
willful misconduct.” Id. at 196 (citing 38 U.S.C. § 1662(a)(1)
(1982)). McKelvey argued that his limitations period should
have been extended because he was an alcoholic. Id. The VA
refused, citing a regulation that describes most forms of
alcoholism as a “result of willful misconduct.” Id. at 197.
McKelvey sued, arguing that the VA’s regulation was illegal
under the Rehabilitation Act, which he argued prohibits
discrimination on the basis of alcoholism. In response, the VA
argued that § 211(a) barred the district court from exercising
jurisdiction.

We rejected the VA’s argument, holding that § 211(a) did
not preclude review because

5
Section 211(a), formerly codified at 38 U.S.C. § 211(a)
(1982), read in pertinent part:

[T]he decisions of the Administrator [of the Veteran’s
Administration] on any question of law or fact under
any law administered by the Veteran’s
Administration providing benefits for veterans and
their dependants or survivors shall be final and
conclusive and no other official or any court of the
United States shall have power or jurisdiction to
review any such decision by an action in the nature of
mandamus or otherwise.
 12

the VA itself had never decided the question
McKelvey’s Rehabilitation Act plea raises . . . .
Section 211(a) preclusion of review depends, at
a minimum, on the satisfaction of this condition:
the petitioner’s claim must have been resolved
by an actual decision of the Administrator. At
the time of the initiation of this suit, the
Administrator had made no decision concerning
the impact of the Rehabilitation Act on
McKelvey’s time extension application.

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

More recently, although again not brought to our attention
by the plaintiffs, the Federal Circuit has similarly rejected the
defendants’ argument of exclusive VA jurisdiction where a
claim is otherwise properly presented in the District Court but
somehow involves a law affecting the provision of benefits. In
Hanlin v. United States, 214 F.3d 1319 (Fed. Cir. 2000), a
veteran and his lawyer executed a written fee arrangement, a
copy of which had been sent to the Secretary, which provided
that the lawyer would receive twenty percent of any benefits
awarded to the veteran and authorized the Secretary to pay the
fee directly to the law firm. The VA, however, mistakenly sent
all the benefits to the veteran. Id. at 1320. Apparently unable
to collect from his client, the lawyer sued the VA in the Court of
Federal Claims arguing that the fee agreement created an
implied-in-fact contract with the United States. The Court of
Federal Claims held that it lacked jurisdiction under § 511(a)
because the claim arose under “a law that affects the provision
of benefits” and therefore could have been decided only by the
VA in a benefits proceedings. Id. at 1320-21. The Federal
Circuit rejected this reasoning, reversed the trial court, and
 13

remanded the case so that the lawyer could pursue his claim
against the VA in federal court:

We do not read the statute to require the
Secretary, and only the Secretary, to make all
decisions related to laws affecting the provision
of benefits. Rather, once the Secretary has been
asked to make a decision in a particular case . . . ,
38 U.S.C. § 511(a) imposes a duty on the
Secretary to decide all questions of fact and law
necessary to a decision in that case. Although
Mr. Hanlin’s claim arises under 38 U.S.C.
§ 5904(d), which is ‘a law that affects the
provision of benefits’ within the meaning of 38
U.S.C. § 511(a), there is no language in 38
U.S.C. § 511(a) requiring an attorney in Mr.
Hanlin’s position to file a claim for fees pursuant
to 38 U.S.C. § 5904(d) with the VA or to
otherwise pursue a remedy through the VA
administrative process. Therefore, 38 U.S.C.
§ 511(a) does not require the Secretary to
address such a claim and thus does not provide
the VA with exclusive jurisdiction over Mr.
Hanlin’s claim.

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

These cases make clear that, while the Secretary is the sole
arbiter of benefits claims and issues of law and fact that arise
during his disposition of those claims, district courts have
jurisdiction to consider questions arising under laws that affect
the provision of benefits as long as the Secretary has not actually
decided them in the course of a benefits proceeding. As the
Federal Circuit stated in Hanlin, we “do not read the statute to
require the Secretary, and only the Secretary, to make all
 14

decisions related to laws affecting the provision of benefits.” Id.
(emphasis added). To the contrary, § 511(a) prevents district
courts from hearing a particular question only when the
Secretary has “actual[ly] deci[ded]” the question. McKelvey,
792 F.2d at 198. Where there has been no such decision,
§ 511(a) is no bar. Id.

We are thus left with the question whether the Secretary has
made an “actual decision” on any issues that the parties are
asking the District Court to decide here. The defendants’ brief
points only to two such questions: (1) “whether the information
allegedly withheld impaired or foreclosed” the veterans benefits
claims, and (2) “whether the radiation dosage exposure
estimates produced by the DTRA defendants and relied upon by
the VA defendants fail to consider relevant information in the
federal government[’s] [sic] possession [but that the Secretary
did not have] and produce scientifically baseless and erroneous
results.” Appellees’ Br. at 25 (quotation marks and citation
omitted). But the Secretary has never decided these questions.
No one argues that they were briefed and argued before the
Secretary. Nor does anyone argue that the Secretary explicitly
considered them when he denied the claims of six of the nine
plaintiffs. The defendants argue only that the Secretary should
be deemed to have decided all issues that could have affected the
outcome of the underlying benefits proceeding, even if those
issues were not explicitly raised before him. To support their
argument, the defendants rely on statements taken from two of
our cases, Price v. United States, 228 F.3d 420 (D.C. Cir. 2000),
and Thomas v. Principi, 394 F.3d 970 (D.C. Cir. 2005).

In Price, a veteran alleged that the VA had “wrongfully
failed to reimburse him for certain medical expenses.” 228 F.3d
at 421. We held that § 511(a) barred the District Court from
hearing this claim because, in order for the court to decide the
issue presented—whether the VA wrongfully failed to reimburse
 15

Price—it would have needed to decide that he was entitled to
reimbursement in the first place. But the Secretary, in the
benefits proceeding, had already decided that Price was not
entitled to benefits. We held, therefore, that § 511(a) precluded
the District Court from hearing the veteran’s claim because it
would require the Court to review the Secretary’s decision. Id.
We then stated—and this is the language the defendants’ focus
upon—that “[b]ecause a determination whether the VA acted in
bad faith or with negligence would require the district court to
determine first whether the VA acted properly in handling
Price’s request for reimbursement, judicial review is foreclosed
by 38 U.S.C. § 511(a).” Id. at 422 (emphasis added).

We used that language again last year in Thomas. Thomas
claimed that the VA had “failed to render [to him] appropriate
medical care services” and had also “den[ied] [him] needed . . .
medical care treatment . . . [,] caus[ing] [him] severe emotional
distress.” Thomas, 394 F.3d at 975. We held that the District
Court was without jurisdiction to hear these claims because they
would have required it to decide whether Thomas was entitled
to medical treatment in the face of a prior VA determination that
he was not. Id. Because the review of these decisions was
explicitly prohibited by § 511(a), we dismissed these claims. Id.
We quoted from Price, stating that our task was to “determine
whether adjudicating Thomas’s claims would require the district
court ‘to determine first whether the VA acted properly in
handling’ Thomas’s benefits request.” Id. at 974 (quoting Price,
228 F.3d at 422) (emphasis added).

The defendants, trying to claim the benefit of our decisions
in Price and Thomas, argue that if the District Court exercises
jurisdiction here, it would need to determine whether the VA
“acted properly” in handling the claims of at least those
plaintiffs who were denied full benefits, something forbidden by
§ 511(a). Not so. In Price and Thomas, if the District Court had
 16

exercised jurisdiction, it would have needed to “review” the
Secretary’s “actual decisions” that veterans were not entitled to
the benefits they sought. Here, by contrast, no such “review” is
required. Unlike the plaintiffs in Price and Thomas, the
plaintiffs in this case are not asking the District Court to decide
whether any of the veterans whose claims the Secretary rejected
are entitled to benefits. Nor are they asking the District Court to
revisit any decision made by the Secretary in the course of
making benefits determinations. The Secretary never considered
or decided the two issues the defendants focus upon—“whether
the information allegedly withheld impaired or foreclosed” the
veterans benefits claims and “whether the radiation dosage
exposure estimates . . . fail to consider relevant information” that
the Secretary did not have. It can therefore hardly be said that
these issues were “necessary to a decision by the Secretary.” 38
U.S.C. § 511(a). The “acted properly” language in Price and
Thomas upon which the defendants rely cannot apply where the
Secretary has not “acted” at all on the issues before us. Thus,
the District Court properly exercised jurisdiction over the claims
of the nine named plaintiffs in this case.

III.

Having satisfied ourselves that the District Court had
federal subject matter jurisdiction to hear the plaintiffs’ claims,
we turn to the merits of the plaintiffs’ claims, which the District
Court dismissed on the grounds of absolute and qualified
immunity. Because it believed that the defendants “perform[ed]
functions closely associated with the judicial process,” see
Cleavinger, 474 U.S. at 200, the District Court held that these
officials were entitled to the same absolute immunity judges
enjoy for their official acts. Broudy, 366 F. Supp. 2d at 11. As
an alternative holding, the District Court dismissed the
plaintiffs’ claims on qualified immunity grounds, holding that
they failed to allege the denial of any constitutional right, let
 17

alone a “clearly established” constitutional right. Id. at 11-13;
see Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (holding that
“government officials performing discretionary functions
generally are shielded from liability for civil damages insofar as
their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known”). The plaintiffs failed to allege what the District Court
held was an indispensable element in their claim for denial of a
constitutional right of access arising out of a cover-up: that the
defendants’ “affirmative misrepresentations”—the cover-up
conduct that allegedly kept the plaintiffs from pursuing their
benefits claims before the VA—took place before, rather than
after, the plaintiffs had filed their claims. Broudy, 366 F. Supp.
2d at 12-13.

On appeal, the plaintiffs challenge the District Court’s
determination that the defendants enjoyed both absolute and
qualified immunity. They argue first that the defendants are not
entitled to absolute immunity because they do not “perform
functions closely associated with the judicial process.” They
argue that the defendants are not entitled to qualified immunity
because even assuming arguendo that a denial-of-access claim
cannot be based on a post-filing cover-up, their complaint did in
fact allege that the cover-up took place before the plaintiffs filed
their claims. Specifically, they point to one of the plaintiffs,
Kathy Jacobovitch, who had not yet filed a claim, but who
nonetheless alleged that she “ha[d] been hampered in her efforts
to file for benefits” based on the defendants’ allegedly unlawful
conduct. In response, the defendants retreat from the District
Court’s conclusion and do not argue, as the District Court held,
that the plaintiffs failed to make this assertion in their complaint.
Instead, the defendants argue, among other things, that the
District Court correctly dismissed the complaint on other
grounds—specifically, that plaintiffs failed to state a claim for
 18

denial of access because their right to meaningful access has not,
in fact, been completely foreclosed.

We review the grant of a motion to dismiss de novo and
“may affirm the dismissal of a complaint on different grounds
than those relied upon by the district court.” Amgen, Inc. v.
Smith, 357 F.3d 103, 108, 111 (D.C. Cir. 2004). To begin, we
note that if the District Court was correct that the plaintiffs’
complaint failed to state a claim for denial of access, it could
have based its dismissal on Federal Rule of Civil Procedure
12(b)(6) rather than the more complicated and, in this instance
at least, unnecessary analysis called for by its resort to the law
of absolute and qualified immunity. See U.S. Nat’l Bank of Or.
v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 440 (1993).
Our discussion and ultimate disposition of this case will focus
solely on whether the plaintiffs have stated a denial-of-access
claim. Because we conclude that they have not, we need not
consider the sometimes nuanced issues involved with qualified
immunity. Nor do we need to consider whether the District
Court properly held that the defendants were entitled to absolute
immunity. If, as we conclude, the plaintiffs have failed to state
a denial-of-access claim, the complaint must be dismissed
regardless of whether defendants have absolute or qualified
immunity.

In reviewing the dismissal of a complaint under Rule
12(b)(6), we are to “accept the allegations of the complaint as
true, draw[] all inferences in the plaintiff’s favor, and [] affirm
‘only if it is clear that no relief could be granted under any set of
facts that could be proved consistent with the allegations.’”
Croixland Properties Ltd. P’ship v. Corcoran, 174 F.3d 213,
215 (D.C. Cir. 1999) (quoting Hishon v. King & Spalding, 467
U.S. 69, 73 (1984)); see also Neitzke v. Williams, 490 U.S. 319,
327 (1989). We therefore look to whether the plaintiffs can
prove “any set of facts . . . consistent with the allegations” in
 19

their complaint, id., that will entitle them to relief. To make this
determination, we must address two issues: (1) the elements the
plaintiffs must prove to prevail on their denial-of-access claims,
and (2) whether the plaintiffs can, under “any set of facts . . .
consistent with their allegations” prove those elements.

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

The Supreme Court has long recognized that citizens have
a right of access to the courts. See Chambers v. Baltimore &
Ohio R.R. Co., 207 U.S. 142, 148 (1907) (“[T]he right to sue and
defend in the courts is the alternative of force. In an organized
society it is the right conservative of all other rights, and lies at
the foundation of orderly government. It is one of the highest
and most essential privileges of citizenship. . . .”). The Supreme
Court has grounded the right at various times in different
provisions of the Constitution: the “Article IV Privileges and
Immunities Clause, the First Amendment Petition Clause, the
Fifth Amendment Due Process Clause, and the Fourteenth
Amendment Equal Protection and Due Process Clauses.”
Christopher v. Harbury, 536 U.S. 403, 415 n.12 (2002)
(“Harbury III”) (citations omitted). Furthermore, “[t]he right
not only protects the ability to get into court, but also ensures
that such access be adequate, effective, and meaningful.”
Harbury v. Deutch, 233 F.3d 596, 607 (D.C. Cir. 2000)
(“Harbury I”) (quotation marks and citations omitted), reh’g
denied 244 F.3d 956 (D.C. Cir. 2001) (per curiam) (“Harbury
II”).6

6
The plaintiffs argue that the constitutional right of access to
the courts extends to administrative proceedings. Cf. California Motor
Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972) (“[T]he
right to petition extends to all departments of the Government. The
right of access to the courts is indeed but one aspect of the right of
petition.”) (internal citations omitted). Because we conclude that the
 20

“[T]wo categories” of “denial of access” cases emerge from
the case law of the Supreme Court and the Courts of Appeals.
Harbury III, 536 U.S. at 413. In the first category,

the essence of the access claim is that official
action is presently denying an opportunity to
litigate for a class of potential plaintiffs. The
opportunity has not been lost for all time,
however, but only in the short term; the object of
the denial-of-access suit, and the justification for
recognizing the claim, is to place the plaintiff in
a position to pursue a separate claim for relief
once the frustrating condition has been removed.

Id. The Court calls these “forward-looking claims.” Id. at 414
n.11. Examples include a prisoner seeking access to a law
library for use in preparing a court filing, id. at 413 (citing
Lewis v. Casey, 518 U.S. 343, 346-48 (1996); Bounds v. Smith,
430 U.S. 817, 828 (1977)), or an indigent plaintiff seeking
waiver of a filing fee that he cannot afford to pay, id. (citing
MLB v. SLJ, 519 U.S. 102, 106-07 (1996); Boddie v.
Connecticut, 401 U.S. 371, 372 (1971)).

“The second category covers claims not in aid of a class of
suits yet to be litigated, but of specific cases that cannot now be
tried (or tried with all material evidence), no matter what official
action may be in the future.” Id. at 413-14 (emphasis added).
The Court explained:

These cases do not look forward to a class of
future litigation, but backward to a time when
specific litigation ended poorly, or could not

plaintiffs fail to state a denial-of-access claim for other reasons, we
need not address this issue.
 21

have commenced, or could have produced a
remedy subsequently unobtainable. The ultimate
object of these sorts of access claims, then, is not
the judgment in a further lawsuit, but simply the
judgment in the access claim itself, in providing
relief obtainable in no other suit in the future.

Id. at 414 (emphasis added). The Court calls these “backward-
looking claims.” Id. at 414 n.11. Examples include cases where
a cover-up “caused the loss or inadequate settlement of a
meritorious case,” id. at 414 (citing Foster v. Lake Jackson, 28
F.3d 425, 429 (5th Cir. 1994); Bell v. Milwaukee, 746 F.2d
1205, 1261 (7th Cir. 1984)), or where a cover-up caused “the
loss of an opportunity to sue” because it extended through the
limitations period, id. (citing Swekel v. City of River Rouge, 119
F.3d 1259, 1261 (6th Cir. 1997)).

Although the plaintiffs use the bulk of their arguments on
appeal to discuss backward-looking claims, they appear to have
brought both forward-looking and backward-looking claims
against the defendants. We say “appear” because neither the
plaintiffs’ complaint nor the briefs follow the approach of the
Supreme Court in Harbury III to specifically identify claims as
“backward-looking” or “forward-looking.” But the complaint
does seek the “immediate[] release . . . [of] all records and
documents, of whatever type or classification and wherever
located, that in any way contain information regarding the
radiation exposure received by any Atomic Veteran, or that
could be used to produce a realistic and scientifically-valid
reconstruction of such exposure.” This seems to raise what
Harbury III would call a forward-looking claim. By retrieving
these documents, the plaintiffs hope to be able to meaningfully
“pursue a separate claim for relief once the frustrating condition
has been removed.” Harbury III, 536 U.S. at 413.
 22

The complaint also alleges that the cover-up denied six of
the nine plaintiffs a meaningful opportunity to seek benefits on
their underlying claims. In the view of the plaintiffs, these
opportunities have now been permanently lost. These
allegations seem to raise what Harbury III would call
backward-looking claims. The “ultimate object” of these claims
appears to be “judgment in the access claim itself, in providing
relief obtainable in no other suit in the future.” Id. Because
plaintiffs’ complaint and briefs focus primarily on these
backward-looking claims, we look first to their necessary
elements.

1. Backward-looking claims.

The only case in our Circuit to address a backward-looking
denial-of-access claim is Harbury I, 233 F.3d 596. Because that
decision, our opinion denying rehearing, Harbury II, 244 F.3d
956, and the Supreme Court’s disposition on review, Harbury
III, 536 U.S. 403, are central to our analysis, we describe them
in some detail.

In Harbury I, Jennifer Harbury, a United States citizen and
the widow of a murdered Guatemalan citizen, claimed that
officials from the State Department and the National Security
Counsel denied her meaningful access to the courts. She alleged
that these officials intentionally deceived her about what they
knew about her husband, who had been kidnapped by
Guatemalan army forces affiliated with the Central Intelligence
Agency. Before her husband’s death, Harbury repeatedly
contacted State Department and National Security Council
officials to try to obtain information about his condition.
According to Harbury, even though these officials knew that her
husband had been captured alive, they “intentionally misled
[her, by making] deceptive statements and omissions, into
believing that concrete information about her husband’s fate did
 23

not exist.” Harbury I, 233 F.3d at 600 (quotation marks and
internal citation omitted). Had these officials not misled her,
she argued on appeal, she could have filed a tort claim for
intentional infliction of emotional distress and, as relief, sought
an injunction requiring the officials to protect her husband. Id.
at 609. The District Court dismissed Harbury’s denial-of-access
claims, concluding that she had failed to allege that the
defendants violated a clearly established constitutional right.
Harbury v. Deutch, No. 96-00438, 1999 WL 33456919, at *9-10
(D.D.C. Mar. 23, 1999).

On appeal, we reversed and held that Harbury had alleged
a violation of a clearly established constitutional right because
she alleged that the defendants’ actions prevented her from
obtaining an injunction “in time to save her husband’s life.”
Harbury I, 233 F.3d at 609. “Because his death completely
foreclosed this avenue of relief”—an injunction that could have
prevented the death of her husband—we allowed Harbury’s
denial-of-access suit to proceed. Id (emphasis added); see also
Harbury II, 244 F.3d at 957 (“The panel opinion permits
Harbury to bring her access to courts claim now only because,
if the facts she pleads are correct . . . , defendants’ actions
‘completely foreclosed’ one of her primary avenues of relief.”)
(citation omitted).

On review in Harbury III, 536 U.S. 403, the Supreme Court
reversed, holding that we erred two ways. First, the Court
disagreed with our conclusion that Harbury had identified a
“non-frivolous,” “arguable” underlying claim. The underlying
claim, the Court held, must be described in the complaint:
“[T]he underlying cause of action . . . is an element that must be
described in the complaint, just as much as allegations must
 24

describe the official acts frustrating the litigation.” Id. at 415.7
Although Harbury had argued successfully in this Court that
absent a cover-up, she “would have brought an action for
intentional infliction of emotional distress,” presumably alleging
that the mistreatment of her husband had injured her, she raised
this “underlying claim” only on appeal and not in her complaint.
Id. at 418-19. That, the Court held, was insufficient. The
“underlying claim,” the Court concluded, is essential to a well-
pled complaint; otherwise the plaintiff’s claim for denial of
access must fail. Because Harbury’s “complaint failed to
identify the underlying cause of action that the alleged deception
had compromised,” it “did not come even close to stating a
constitutional claim.” Id. at 418.

The Court found Harbury’s complaint deficient in yet
another way. Her complaint did not seek a particular type of
remedy that the Court concluded is essential to a backward-
looking denial-of-access claim:

[T]he complaint must identify a remedy that may
be awarded as recompense but not otherwise
available in some suit that may yet be brought.
There is, after all, no point in spending time and
money to establish the facts constituting denial
of access when a plaintiff would end up just as
well off after litigating a simpler case without the
denial-of-access element.

7
See also Harbury III, 536 U.S. at 416 (“Like any other
element of an access claim, the underlying cause of action . . . must be
addressed by allegations in the complaint sufficient to give fair notice
to a defendant.”); id. (“the predicate claim [must] be described well
enough to apply the ‘nonfrivolous’ test and to show that the ‘arguable’
nature of the underlying claim is more than hope”).
 25

Id. at 415. The purpose of this requirement is “to hedge against
the risk that an access claim be tried all the way through, only to
find that the court can award no remedy that the plaintiff could
not have been awarded on a presently existing claim.” Id. at
416. Just as the underlying claim must be described “in
accordance with Federal Rule of Civil Procedure 8(a) . . . as if
it were being independently pursued,” “a like plain statement [in
the complaint] should describe any remedy available under the
access claim and presently unique to it.” Id. at 417-18.

Harbury failed to seek any remedy “that could not be
obtained on an existing claim.” Id. at 421. She could still obtain
damages through her tort claim against those who tortured her
husband. Damages, therefore, were not a “remedy . . . presently
unique” to her access claim. Id. at 417-18. Perhaps recognizing
that fact, Harbury argued that, but for the cover-up, she would
have sought an injunction that might have saved her husband’s
life. Id. at 421-22. But although an injunction might have
prevented her husband’s death, it was not “available under the
access claim,” the Court noted, because Harbury’s husband had,
tragically, already died. Id. at 417-18, 422.

Harbury III, and the portions of our decisions in Harbury I
and II which have not been disturbed,8 evidence at least three
elements necessary to prove a backward-looking denial-of-
access claim: an arguable underlying claim, complete
foreclosure, and causation. First, to state a denial-of-access
claim, plaintiffs must identify “in the complaint” a “non-

8
See Action Alliance of Senior Citizens of Greater
Philadelphia v. Sullivan, 930 F.2d 77, 83 (D.C. Cir. 1991) (“Although
the Supreme Court vacated our prior opinion, it expressed no opinion
on the merit of these holdings. They therefore continue to have
precedential weight, and in the absence of contrary authority, we do
not disturb them.”) (citations omitted).
 26

frivolous,” “arguable” underlying claim. Id. at 415. Second,
and dispositive in this case, the plaintiffs must show that they
have been denied a remedy for their underlying claims. This
remedy must have been “completely foreclosed.” Harbury I,
233 F.3d at 610; see also Harbury II, 244 F.3d at 957. Thus, if
relief on the underlying claims is still available in a “suit that
may yet be brought,” Harbury III, 536 U.S. at 415, or a
“presently existing claim,” id. at 416, the plaintiffs cannot meet
this element of their claims. See also id. at 413-14 (stating that
backward-looking denial-of-access claims must identify an
underlying claim that “cannot now be tried (or tried with all
material evidence) no matter what official action may be in the
future”). Third, the plaintiffs must show that it was the
defendants’ actions that have cut off their remedy. See Harbury
II, 244 F.3d at 957 (“The panel opinion permits Harbury to bring
her access to courts claim now only because, if the facts she
pleads are correct . . . defendants’ actions completely foreclosed
one of her primary avenues of relief.”) (citation and quotation
marks omitted.).

2. Forward-looking claims.

The Supreme Court’s jurisprudence on forward-looking
claims reveals at least two necessary elements: an arguable
underlying claim and present foreclosure of a meaningful
opportunity to pursue that claim. First, just as with backward-
looking claims, a plaintiff who alleges a forward-looking claim
must plead a non-frivolous, arguable underlying claim. See
Lewis v. Casey, 518 U.S. 343, 353 (1996) (holding that inmate
bringing a forward-looking claim must point to a “nonfrivolous
legal claim [that was] being frustrated [or] impeded”); see also
Harbury III, 536 U.S. at 415 (“even in forward-looking prisoner
class actions to remove roadblocks to future litigation, the
named plaintiff must identify a ‘nonfrivolous,’ ‘arguable’
underlying claim”).
 27

Second, a plaintiff who alleges a forward-looking claim
must be “presently den[ied] an opportunity to litigate.” Harbury
III, 536 U.S. at 413. Such plaintiffs must show that a
meaningful opportunity to pursue their underlying claims was
“completely foreclosed.” Harbury I, 233 F.3d at 609; Harbury
II, 244 F.3d at 957.9 In the prison context, for example,
prisoners bringing a forward-looking claim must show an
“actual injury to [their] litigation.” Crawford-El v. Britton, 951
F.2d 1314, 1321 (D.C. Cir. 1991). No such injury exists if a
plaintiff can still meaningfully press his underlying claims
because the plaintiff is not being “presently den[ied] an
opportunity” to meaningfully litigate, even in “the short term.”
Harbury III, 536 U.S. at 413.10

B. Whether the Plaintiffs Can Prove Denial of Access.

We turn now to whether the plaintiffs can show they have
been, and are currently being, denied meaningful access to the
courts.

1. Backward-looking claims.

As mentioned, to state a backward-looking denial-of-access
claim, plaintiffs must show, among other things, that they have
been “completely foreclosed” from meaningfully pursuing their
underlying claims. Plaintiffs’ complaint looks backward to just

9
Although Harbury I and II discussed this requirement in the
context of a backward-looking claim, nothing in these cases or
Harbury III, suggests that a forward-looking claim can proceed if a
plaintiff can still meaningfully pursue the underlying claim.
10
Our discussion of the elements of forward-looking and
backward-looking claims is not intended to be exhaustive. We have
discussed only those elements necessary to resolve this dispute.
 28

one group of underlying claims: the claims of six of the nine
plaintiffs that were rejected by the VA. Because these
underlying claims have not been “completely foreclosed,”
however, plaintiffs have failed to state a claim for denial of
access.11

Plaintiffs cannot show, consistent with the allegations of the
their complaint, that no avenue exists through which they can
meaningfully pursue their underlying benefits claims.
Consequently, they cannot show that the relief they seek is not
available in a “suit that may yet be brought,” Harbury III, 536
U.S. at 415, or in a “presently existing claim,” id. at 416. The
six plaintiffs bringing backward-looking claims cannot make
this showing because the Freedom of Information Act (“FOIA”),
and VA regulations that allow for the reopening of prior benefits
proceedings, appear to provide them, in tandem, precisely what
they claim they have been denied. If the defendants are
covering up records of medical tests that describe the amount of
radiation to which these veterans were exposed, FOIA provides
a potential remedy. FOIA provides that, subject to certain
exceptions,12 “each agency, upon any request for records which

11
Because we conclude that plaintiffs cannot show other
elements of a denial-of-access claim, we do not address whether the
complaint describes the underlying claims of these six plaintiffs “well
enough to apply the ‘nonfrivolous’ test and to show that the ‘arguable’
nature of the underlying claim is more than hope.” Harbury III, 536
U.S. at 416.
12
Plaintiffs have not shown that the exceptions to FOIA
described in 5 U.S.C. § 552(b) would allow these agencies to withhold
these documents. In any event, we have reviewed those exceptions
and have not found any exception that would so clearly apply as to
relieve plaintiffs of the obligation of exhausting their FOIA remedies.
See 5 U.S.C. § 552(b)(6) (providing an exception for medical records
but only where “the disclosure of [the records] would constitute a
 29

(i) reasonably describes such records and (ii) is made in
accordance with published rules stating the time, place, fees (if
any), and procedures to be followed, shall make the records
promptly available to any person.” 5 U.S.C. § 552(a)(3)(A). If
the agency does not make these records available, a party can
repair to the district court “to enjoin the agency from
withholding agency records and to order the production of any
agency records improperly withheld from the complainant.” Id.
§ 552(a)(4)(B).

Once plaintiffs obtain the records, VA regulations allow
them to “reopen a finally adjudicated claim by submitting new
and material evidence.” 38 C.F.R. § 3.156(a). Under the
regulations, “new evidence” is “existing evidence not previously
submitted to agency decisionmakers” and “material evidence”
is “existing evidence that, by itself or when considered with
previous evidence of record, relates to an unestablished fact
necessary to substantiate the claim.” Id. If these covered-up
documents are what plaintiffs say they are, this provision would
undoubtedly allow plaintiffs to reopen their earlier claims. Once
the claims are reopened, if the new and material evidence
supports a finding that the plaintiffs’ illnesses are service-
connected, benefits will be awarded retroactive to the date of
original filing. 38 C.F.R. § 3.156(c). Plaintiffs therefore will be
in the same position they would have been in had there been no
cover-up at all. See Harbury III, 536 U.S. at 415 (“There is,
after all, no point in spending time and money to establish the
facts constituting denial of access when a plaintiff would end up
just as well off after litigating a simpler case without the denial-
of-access element.”).

None of the plaintiffs in this case have suggested that this
avenue for relief is foreclosed. Plaintiffs did file a FOIA request

clearly unwarranted invasion of personal privacy”).
 30

with the VA, DoD, and other Government agencies, but they
have not challenged in any court these agencies’ failure or
refusal to provide the requested documents. Given plaintiffs’
failure to exhaust FOIA remedies and seek a reopening of their
benefits’ claims, plaintiffs cannot show that their underlying
claims have been “completely foreclosed.” Harbury I, 233 F.3d
at 609. That failure is fatal to their backward-looking claims.

As a fallback, at oral argument plaintiffs’ counsel suggested
that the complaint also looks backward to a second category of
underlying claims: claims for veterans benefits that the plaintiffs
did not file because the defendants’ cover-up kept them from
knowing that they had been subjected to dangerous levels of
radiation while in military service. We have reviewed the
complaint, however, and its four counts do not come close to
identifying such a category of underlying claims. See Harbury
III, 536 U.S. at 416 (requiring that the “predicate claim be
described well enough to apply the ‘nonfrivolous’ test and to
show that the ‘arguable’ nature of the underlying claim is more
than hope”). The first count, entitled “Denial Of Access to
Courts–Systemic Official Action to Frustrate Plaintiffs’
Preparing, Filing, and Prosecuting Current Claims for Veterans
Benefits,” looks forward to claims not yet closed. J.A. 50
(emphasis added). The second, entitled “Denial Of Access to
Courts–Systemic Official Action to Cause the Loss or
Inadequate Settlement of Past Claims for Veterans Benefits,”
looks backward to claims already filed and closed. J.A. 53
(emphasis added). The last two—“Conspiracy to Deny
Plaintiffs’ Constitutional Rights” and “Failure to Act to Prevent
Denial of Plaintiffs’ Constitutional Rights”—are dependant on
the first two.

The only statement in the complaint which even arguably
looks backward to underlying claims that the plaintiffs did not
file is the following confusing statement: “Plaintiffs have
 31

suffered a permanent loss of financial compensation and
opportunities for medical benefits . . . because VA regulations
prohibit awarding Plaintiffs financial and medical benefits lost
because of the denials of past benefit claims and permanently
lost opportunities to file benefits claims even if those claims are
filed or reopened in the future.” J.A. 54. But this statement tells
us nothing about which, if any, of the named plaintiffs
“permanently lost” specific claims in this way, nor does it tell us
anything about the nature of these supposedly “permanently
lost” claims—certainly not enough to give the defendants, let
alone the Court, “fair notice” of these claims or to allow us to
decide if these claims are “nonfrivolous.” See Harbury III, 536
U.S. at 416.

2. Forward-looking claims.

As noted, plaintiffs also appear to bring forward-looking
denial-of-access claims, seeking release of the covered-up
documents so that they can meaningfully “pursue a separate
claim for relief once the frustrating condition has been
removed.” Harbury III, 536 U.S. at 413. But these claims fail
for the same reason as the backward-looking claims. Because
plaintiffs can still seek, through FOIA, the documents they
believe they need to meaningfully pursue their benefits claims,
they cannot show that their opportunity to meaningfully litigate
has been “completely foreclosed,” Harbury I, 233 F.3d at 609,
or that the defendants’ actions “presently den[ied] [the
plaintiffs] an opportunity to litigate,” Harbury III, 536 U.S. at
413. That failing is fatal to their forward-looking claims.

IV.

Plaintiffs have failed to state a claim for denial of access to
the courts. They cannot show, under any set of facts consistent
with the allegations of their complaint, that the defendants
 32

completely foreclosed their opportunity to meaningfully pursue
underlying benefits claims before the VA. The decision of the
District Court is therefore affirmed.

So ordered.