Harbury, Jennifer K. v. Deutch, John M. ( 2001 )

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; Williams, Ginsburg,
Sentelle, Henderson, Randolph, Rogers, Tatel and
Garland, Circuit Judges.
O R D E R
Appellees' petition for rehearing en banc and the response
thereto have been circulated to the full court. The taking of
a vote was requested. Thereafter, a majority of the judges of
the court in regular active service did not vote in favor of the
petition. Upon consideration of the foregoing, it is
ORDERED that the petition be denied.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
A statement of Circuit Judge Henderson dissenting from
the denial of rehearing en banc, joined by Circuit Judge
Sentelle, is attached.
Circuit Judge Garland did not participate in this matter.
Karen LeCraft Henderson, Circuit Judge, with whom
Sentelle, Circuit Judge, joins, dissenting:
I dissent from the denial of rehearing en banc because
Harbury suffered no constitutional deprivation or, alternative-
ly, if she did, the individual defendants are entitled to quali-
fied immunity from liability therefor. As the panel opinion
notes, to state a claim Harbury must allege that the defen-
dants' misrepresentations and nondisclosures foreclosed her
" 'from effectively seeking adequate legal redress,' " Harbury
v. Deutch, 233 F.3d 596, 609 (D.C. Cir. 2000) (quoting Com-
plaint p 98). Yet Harbury has nowhere identified what "legal
redress" might have been adequate to save her husband.
Her claim on appeal that but for the government's deception
she "could have sought an emergency injunction based on an
underlying tort claim for intentional infliction of emotional
distress," id., does not fill the bill. No United States court
could reach the alleged tortfeasors, Guatemalan nationals on
Guatemalan soil, in order to prevent their killing Harbury's
husband, another Guatemalan national. While Harbury may
not be required to plead "a strict causal showing of exactly
what relief [she] would have obtained in court had defendants
not concealed the truth," she must nevertheless "establish
that the concealment 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). She has not. The only cause
is the absence of any effective relief. "I do not believe the
Court does a [party] a favor by giving it an opportunity to
expend resources in litigation that has no chance of success."
South Carolina v. Regan, 465 U.S. 367, 403 (1984) (Stevens,
J., dissenting).
Even had Harbury made a colorable claim, the individual
government defendants would be entitled to qualified immuni-
ty because reasonable officials in their positions could have
believed that under established law their actions did not
violate Harbury's constitutional right of access to the courts.
In cases from other circuits finding such a right was violated,
the plaintiffs alleged that the defendant state officials, police
officers or prosecutors, covered up murders by other such
officials in order to prevent the plaintiffs from pursuing
wrongful death actions. See, e.g., Bell, supra; Ryland v.
Shapiro, 708 F.2d 967, 972 (5th Cir. 1983). In this case, by
contrast, Harbury contends the National Security Council and
the State Department covered up her husband's captivity by
foreign nationals on foreign soil in order to keep her from
obtaining relief in a United States court that would prevent
her husband's subsequent murder on foreign soil at the hands
of the foreign nationals. The defendants plainly were not on
notice that such very different conduct might violate Har-
bury's right of access to the courts. See Butera v. District of
Columbia, 235 F.3d 637, 646 (D.C. Cir. 2001) ("A constitution-
al right was 'clearly established' at the time of the events in
question only if '[t]he contours of the right [were] sufficiently
clear that a reasonable officer would understand that what he
[was] doing violate[d] that right.' ") (quoting Anderson v.
Creighton, 483 U.S. 635, 640 (1987)) (citing Harris v. District
of Columbia, 932 F.2d 10, 13 (D.C. Cir. 1991); Martin v.
Malhoyt, 830 F.2d 237, 253 (D.C. Cir. 1987)).