Christopher v. Harbury - Opinion Announcement

Argument of Justice Souter

Mr. Souter: The second case in which I have the opinion to announce this morning is No. 01-394, Christopher v. Harbury.

This case comes to us on writ of certiorari to the United States Court of Appeals for the District of Columbia Circuit.

Jennifer Harbury, a United States citizen brought suit in the District Court alleging among other things.

The officials of the State Department of the National Security Council had intentionally deceived her in concealing information about her husband a Guatemalan decedent.

She alleged that these officials knew that her husband had been captured, tortured and then killed by Guatemalan army officers who were paid agents of the Central Intelligence Agency.

In addition to claims of direct harm to her and her husband on behalf of his estate, Harbury claimed that she had been unconstitutionally denied access to the courts, when State Department officials affirmatively deceived her while her husband was still alive.

She alleged that this deception prevented her from bringing a suit that might have saved her husband’s life.

She sued the officials on the theory of Bivens against Six Unknown Federal Narcotics Agents for this denial of judicial access.

The District Court dismissed the access to Court’s claim and other claims brought under Bivens for failure to state a claim, but it did not dismiss certain common law tort claims that she brought invoking the Federal Tort Claims Act including a claim for intentional-infliction of emotional distress against the CIA defendants for the torture and death of her husband.

The DC Circuit generally affirmed the dismissal of the claims, but it reversed the District Court’s dismissal of the access to court’s claims brought against the government officials involved, and it also affirmed that they were non-entitled to qualified immunity for their deceptive statements denying Harbury judicial access.

We granted certiorari as to the Circuit Court’s holding on the access to court’s claim because of the importance of the issue to the conduct of the nation’s foreign affairs.

In an opinion filed today with the Clerk of the Court, we reverse and remand.

As a general matter, access to court claims fall into two categories: First our own decisions have recognized forward looking access claims, claims that systematic or systemic official action frustrates a plaintiff or a class of plaintiffs in preparing and filing suits at the present time.

When I say the present time, I mean the time when the suits can be pursued once the frustrating condition has been removed.

Second, the Courts of Appeals have recognized backward looking claims of denial of access in which a plaintiff claims that official action has precluded him from bringing or satisfactorily litigating a specific suit that cannot be pursued, no matter what official action maybe in the future.

But regardless of whether an access claim is forward looking or backward looking, the point of recognizing is to provide an effective vindication for a separate and distinct right to seek judicial relief for some wrong, namely the past or prospective loss of a legal claim or form of relief.

Accordingly, in both cases, both kinds of cases, a plaintiff must identify the foreclosed or a predicate claim or relief sought and must do this as part of the access claim itself just as the plaintiff would have to identify any other element of the access claim.

There is particular need for care in stating the predicate lawsuit here because it may implicate separation of powers issues as to the role of courts in foreign affairs.

Harbury wishes to bring a backward looking access claim, but she fails to make such a claim because she is not identified a predicate claim or a remedy that could be obtained by the access claim but not obtainable by some other lawsuit right now.

The Court of Appeals allowed Harbury an informal amendment to clarify her predicate claim.

Her counsel responded to the Court of Appeals that she would have brought an action for intentional-infliction of emotional distress against the CIA defendants who were complicit in her husband’s torture and death as the wrong for which she would have sought the injunctive relief that might have saved her husband’s life.

But the complaints intentional-infliction in related counts naming the CIA defendants are among the tort claims that survived the motion to dismiss in the District Court.

No Government deception prevents her from suing right now on those claims.

Therefore, if she has any backward looking access claim at all it must be because she can get some relief on the access claim that she cannot get on the intentional-infliction claim.

The only relief she has suggested that she cannot get on the present intentional-infliction claim if she can make good on it is an order that might have spared her husband’s life, but this does not entitled her to bring a backward looking access into court’s claim because she cannot get such an order under the access claim either.

Justice Thomas has filed an opinion concurring in the judgment.