                  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

                               