Harbury, Jennifer K. v. Deutch, John M.

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 8, 2000 Decided December 12, 2000
No. 99-5307
Jennifer K. Harbury,
Appellant
v.
John M. Deutch, et al.,
Appellees
Appeal from the United States District Court
for the District of Columbia
(No. 96cv00438)
Jodie L. Kelley argued the cause for appellant. With her
on the briefs were Paul Hoffman, Beth Stephens and Jenni-
fer M. Green. Maureen F. Del Duca entered an appearance.
R. Craig Lawrence, Assistant U.S. Attorney, argued the
cause for appellees. With him on the brief was Wilma A.
Lewis, U.S. Attorney.
Before: Edwards, Chief Judge, Ginsburg and Tatel,
Circuit Judges.
Opinion for the Court filed by Circuit Judge Tatel.
Tatel, Circuit Judge: Jennifer Harbury claims that for
about one and a half years in the early 1990s, Central
Intelligence Agency officials participated in the torture and
murder of her husband, a Guatemalan citizen. She also
claims that while he was being tortured and for more than a
year and a half after his death, State Department and Nation-
al Security Council officials systematically concealed informa-
tion from her and misled her about her husband's fate.
Seeking, among other things, damages under Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403
U.S. 388 (1971), she filed suit in federal court, claiming
deprivation of her husband's Fifth Amendment due process
rights, violation of her right to familial association, and inter-
ference with her right of "access to courts." The district
court dismissed these actions, finding that Harbury had failed
to allege the deprivation of any actual constitutional rights,
and that even if she had, defendants were entitled to qualified
immunity. We agree with the district court as
to Harbury's Fifth Amendment and familial association
claims. But because we find that she has stated a valid claim
for deprivation of her right of access to courts, and because
the NSC and State Department officials are not entitled to
qualified immunity on this claim. We reverse and remand for
further proceedings.
I
Since this appeal comes here on a motion to dismiss, we
accept the facts as alleged in the complaint. See Moore v.
Valder, 65 F.3d 189, 192 (D.C. Cir. 1995). Emphasizing that
defendants have not yet answered Harbury's charges and
that her claims have been subject to neither discovery nor
cross-examination, we set out the facts as she pleads them,
borrowing liberally from her complaint.
In 1991, Harbury, an American citizen, married Efrain
Bamaca-Velasquez, a Guatemalan citizen and high-ranking
member of the Guatemalan National Revolutionary Union, a
Guatemalan rebel organization. Several months after their
Texas wedding, Bamaca returned to Guatemala where, on or
around March 12, 1992, he disappeared. The Guatemalan
army reported that during a skirmish with its troops, Bamaca
committed suicide and was buried nearby. This was false.
In fact, Bamaca had been captured and secretly detained by
members of the Guatemalan military, including, Harbury
alleges, CIA "assets"--members of Guatemalan Security
Forces or Intelligence Services paid by the CIA to obtain
information about the Guatemalan resistance.
According to the complaint, over the next twelve to eigh-
teen months, Bamaca's captors psychologically abused and
physically tortured him. They chained and bound him naked
to a bed, beat and threatened him, and encased him in a full-
body cast to prevent escape. Eventually, probably some time
around September of 1993, they executed him.
About a year after Bamaca disappeared, in early 1993,
Harbury learned from a prisoner who had escaped from a
Guatemalan interrogation camp that her husband was alive
and being tortured. Harbury immediately contacted several
State Department officials, reported what she had learned,
and asked for information about her husband's status. Al-
though officials to whom she spoke promised to look into the
matter, they never provided her with any information.
In August 1993, Harbury obtained permission to open
Bamaca's grave. Discovering that the body there was not
his, she immediately informed Marilyn McAfee, the U.S.
Ambassador to Guatemala. Although the Ambassador told
Harbury that she would investigate the matter and report her
findings, she too never provided Harbury with any informa-
tion.
Over the next year, from October 1993 to October 1994,
Harbury met repeatedly with State Department officials.
Saying they were concerned about Bamaca's situation, these
officials reassured her they were seriously looking into the
matter and told her the Guatemalan Military had informed
them that it did not have (and never had) custody of Bamaca.
In October of 1994, the CBS news program 60 Minutes
reported that the U.S. Embassy in Guatemala had an intelli-
gence report confirming that Bamaca had been captured
alive. In response, the State Department publicly confirmed
Bamaca's capture, stating that he had been lightly but not
seriously wounded and held prisoner for some time. The
State Department also reported that it had no information
confirming that Bamaca was still alive.
In the wake of the 60 Minutes report and the State
Department's public statements, Harbury met with National
Security Advisor Anthony Lake who told her that the govern-
ment had "scraped the bottom of the barrel" for information
about her husband and that no further information existed.
Complaint p 83. He promised that the government would not
only continue searching for information, but also keep Har-
bury informed. Other State Department and NSC officials
likewise told her that they had no concrete information about
Bamaca's condition, but that they were continuing to assume
that he was still alive. Suspecting that State and NSC
officials were withholding information, Harbury filed a Free-
dom of Information Act request. Despite expedited process-
ing, she received no documents in the following months.
Finally, because of the "failure of the [State Department
and NSC] defendants to inform her of her husband's fate,"
Harbury announced that she would begin a hunger strike in
front of the White House on March 12, 1995, the third
anniversary of her husband's disappearance. Complaint p 87.
State Department and NSC officials then met with her again,
telling her this time that they believed Bamaca was dead
because so many years had passed without evidence that he
was alive. Unconvinced, Harbury began her hunger strike.
Twelve days into the strike, Congressman Robert Torricelli
announced publicly that years earlier, Bamaca had been killed
at the order of a paid CIA asset.
On her own behalf and as administratrix of Bamaca's
estate, Harbury brought suit in the U.S. District Court here
against various named and unnamed officials of the CIA, the
State Department, and the NSC. She based her claims on
two broad factual allegations. First, she alleged that CIA
officials at all levels "knowingly engaged in, directed, collabo-
rated and conspired in, and otherwise contributed to [her
husband's] secret imprisonment, torture and extrajudicial
murder." Complaint p 49. Many of the Guatemalan military
officers who tortured and killed Bamaca, she alleged, were
paid CIA agents. Two had been trained in torture and
interrogation techniques at the School of the Americas, a U.S.
Army facility located in Georgia. According to Harbury, CIA
officials who did not participate directly in Bamaca's torture
not only paid Agency assets for information about Bamaca's
rebel organization, knowing that the information had been
extracted through torture, but also requested further intelli-
gence, knowing it too would be obtained in the same manner.
And as a general matter, Harbury alleged that CIA officials
knew of other gross human rights violations in Guatemalan
interrogation centers--including beatings with cement blocks,
burials of prisoners alive, and electrical shocks to the testicles
and legs--and that CIA officials up the chain of command,
from the operations and intelligence divisions to the Director
himself, expressly authorized their assets to use torture to
obtain information from Guatemalan rebel leaders.
Second, Harbury alleged that while Bamaca was still alive,
State Department and NSC officials, including Ambassador
McAfee and NSA Lake, made "fraudulent statements and
intentional omissions" that prevented her from "effectively
seeking adequate legal redress, petitioning the appropriate
government authorities, and seeking to publicize her hus-
band's true plight." Complaint p 98. According to the com-
plaint, when Harbury first contacted State Department offi-
cials to follow up on what she had learned from the escaped
prisoner, they actually knew that her husband was alive and
being tortured. They knew this, she alleged, because a week
after Bamaca's capture, the CIA informed both State Depart-
ment and White House officials that Guatemalan military
forces would "probably fabricate his combat death in order to
maximize their ability to extract information from [him]." Id.at WW 35, 56-57. Yet State Department officials, including
Ambassador McAfee, revealed none of this information to
Harbury. Instead, they repeatedly reassured her that al-
though they were investigating Bamaca's fate, they had dis-
covered nothing. According to Harbury, internal memoranda
distributed and received by both State Department and NSC
officials demonstrate their "intent to keep the involvement of
the U.S. Government in the detention, torture, and execution
of Mr. Bamaca out of the public eye." Id. at p 69. Those
officials, she alleged, "intentionally misled [Harbury], through
their deceptive statements and omissions, into believing that
concrete information about her husband's fate did not exist
because they did not want to threaten their ability to obtain
information from Mr. Bamaca," and because they feared that
if they disclosed information to Harbury or anyone else, "they
could then be subject to public embarrassment, censure,
and/or legal liability." Id. at WW 67-69.
After Bamaca's death, the pattern of deception and non-
disclosure allegedly continued. Although the Defense Intelli-
gence Agency reported in September 1993 to the State De-
partment, the White House, and the U.S. Embassy in Gua-
temala that Bamaca had been killed, all officials she met with
during the following months, including NSA Lake, continued
to lead her to believe not only that her husband was alive, but
also that they were doing all they could to learn more about
him. "[A]t no time," she alleged, did these officials inform
her that "they were unwilling to investigate her case or to
give her information about her husband's situation. Instead,
a decision was made to neither share the information with
her, nor inform her of the existence of such information." Id.
at p 77.
Based on these factual allegations, Harbury pleaded 28
specific causes of action, including (1) claims against defen-
dants in their official capacities seeking a declaratory judg-
ment that their conduct was unconstitutional, as well as an
injunction preventing the CIA from extracting information
through torture and preventing the State Department and
NSC from concealing information about CIA torture victims;
(2) Bivens actions against defendants in their individual ca-
pacities seeking damages for their alleged constitutional viola-
tions; (3) common law tort claims against individual defen-
dants, including claims for intentional infliction of emotional
distress and wrongful death; and (4) claims against individual
defendants for violations of international law. Only Har-
bury's Bivens claims are directly at issue in this appeal.
These claims rest on three alleged constitutional violations:
(1) by contributing to Bamaca's torture, CIA defendants
violated his Fifth Amendment substantive due process rights;
(2) by participating in and concealing information about Ba-
maca's torture and murder, all defendants violated Harbury's
constitutional right to familial association; and (3) by conceal-
ing information and misleading her about her husband's fate,
NSC and State Department defendants violated her right of
access to courts.
The district court dismissed Harbury's Bivens claims, find-
ing with respect to each not only that she failed to allege a
deprivation of an actual constitutional right, but also that
even if she had, defendants were entitled to qualified immuni-
ty because the scope of the alleged right was not clearly
established. Pursuant to Federal Rule of Civil Procedure
54(b), the district court certified its dismissal of Harbury's
Bivens claims as final. We review de novo a dismissal for
failure to state a claim upon which relief can be granted,
accepting the facts as alleged in the complaint. See Moore,
65 F.3d at 192. "[A] complaint should not be dismissed for
failure to state a claim unless it appears beyond doubt that
the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief." Conley v. Gibson, 355
U.S. 41, 45-46 (1957).
II
Harlow v. Fitzgerald holds that "government officials per-
forming 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." 457 U.S. 800,
818 (1982). Following Harlow and abiding by the familiar
practice of avoiding unnecessary adjudication of constitutional
questions, many courts faced with claims resting on constitu-
tional rights of uncertain scope have dismissed cases based on
qualified immunity alone. See, e.g., Childress v. Small Bus.
Admin., 825 F.2d 1550, 1552 (11th Cir. 1987). In other
words, "assum[ing], arguendo, without deciding" that a consti-
tutional right in fact exists, courts have asked whether the
right is clearly established. See id.The Supreme Court cast doubt on this approach in Wilson
v. Layne: "A court evaluating a claim of qualified immunity
must first determine whether the plaintiff has alleged the
deprivation of an actual constitutional right at all, and if so,
proceed to determine whether that right was clearly estab-
lished at the time of the alleged violation." 526 U.S. 603, 609
(1999) (internal quotation omitted). As the Court had previ-
ously recognized, "if the policy of avoidance [of unnecessary
adjudication of constitutional issues] were always followed in
favor of ruling on qualified immunity whenever there was no
clearly settled constitutional rule of primary conduct, stan-
dards of official conduct would tend to remain uncertain, to
the detriment both of officials and individuals." County of
Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998).
Notwithstanding Wilson, the Government urges us to dis-
pose of this case based on qualified immunity without reach-
ing the merits of Harbury's underlying claims. In support of
this argument, it cites our recent decision in Kalka v. Hawk,
215 F.3d 90 (D.C. Cir. 2000), where the district court had
dismissed a complaint brought by a federal prisoner claiming
that the Bureau of Prisons had denied him his First Amend-
ment right to practice secular humanism. Without reaching
the merits of Kalka's constitutional claim, we affirmed based
on qualified immunity alone. The Supreme Court's concern
that the scope of the underlying constitutional right would
never be adjudicated, we held, had "little force when injunc-
tive relief against the official's actions is potentially available."
Id. at 97. Although Kalka's own claim for injunctive relief
had become moot (he had been released from prison during
his appeal), "there is still the potential that other prisoners
who practice humanism may bring such suits and settle the
question whether humanism ... is a religion within the First
Amendment. This possibility of injunctive actions satisfies
the Court's desire for 'clarity in the legal standards for official
conduct.' " Id. (quoting Wilson, 526 U.S. at 609).
In certain respects, this case does resemble Kalka. Like
Kalka, Harbury alleges that the challenged government con-
duct is ongoing: in a part of her suit not before us, Harbury
claims that the government still extracts information through
torture and covers up information about the victims. Also
like Kalka, Harbury herself is no longer subject to the
challenged conduct: Bamaca's torture ended with his death,
and sufficient facts about U.S. involvement in his treatment
have come to light to enable Harbury to seek legal relief.
At this point, however, the similarities with Kalka end.
Harbury has been able to challenge the conduct of the
government only because its cover-up failed. If the cover-up
had succeeded, Harbury would have learned neither of CIA
involvement in her husband's torture nor of NSC and State
Department attempts to keep that involvement secret. Thus,
unlike in Kalka, where future secular humanist prisoners
could seek injunctive relief for denial of First Amendment
rights (so long as they remained incarcerated), the very
nature of the conduct Harbury challenges renders unlikely
the possibility of injunctive relief: another spouse in Har-
bury's position could challenge her husband's torture only if
she learned of the torture before it ended. In essence, the
Government asks us to defer adjudication of the constitution-
ality of its alleged conduct until it again fails in a cover-up,
this time before the victim dies. Nothing in Kalka requires
such a preposterous result.
Applying Wilson, then, we must address the validity of
Harbury's constitutional allegations before reaching the ques-
tion of qualified immunity. It is to that task that we now
turn.
Fifth Amendment
Government conduct that "shocks the conscience" violates
the Fifth Amendment guarantee against deprivation of "life,
liberty, or property, without due process of law." See Rochin
v. California, 342 U.S. 165, 172-73 (1952). No one doubts
that under Supreme Court precedent, interrogation by tor-
ture like that alleged by Harbury shocks the conscience. See
id. at 172 (interrogation methods were "too close to the rack
and the screw to permit of constitutional differentiation");
Palko v. Connecticut, 302 U.S. 319, 326 (1937), overruled on
other grounds by Benton v. Maryland, 395 U.S. 784 (1969)
(noting that the Due Process Clause must at least "give
protection against torture, physical or mental"). The difficult
question, and the one presented by this case, is whether the
Fifth Amendment prohibits torture of non-resident foreign
nationals living abroad. Before reaching that question, how-
ever, we must consider Harbury's claim that because many of
the CIA, NSC, and State Department officials who she says
conspired to torture her husband did so within the United
States, this case does not require extra-territorial application
of the Fifth Amendment.
In support of this argument, Harbury cites Cardenas v.
Smith, 733 F.2d 909 (D.C. Cir. 1984), which involved a
Colombian citizen whose Swiss bank accounts were seized by
Swiss authorities at the request of the U.S. Department of
Justice. Despite the fact that the seized accounts were
located in Switzerland, we suggested in dicta that the plaintiff
might be able to establish injury within the U.S. by showing
that her accounts were seized as a result of an unlawful
conspiracy within the Justice Department. Id. at 913. Har-
bury also cites Lamont v. Woods, 948 F.2d 825 (2d Cir. 1991),
which involved allegations that the U.S. Government violated
the Establishment Clause of the First Amendment by giving
grants to foreign religious schools. Even though the money
was delivered and spent abroad, the court held that the
alleged violation of the Establishment Clause was domestic
because it occurred when the federal agency allocated the
funds. Id. at 834.
Harbury fails to notice the relevance of United States v.
Verdugo-Urquidez, 494 U.S. 259 (1990), a case she cites later
in her brief, where the Supreme Court held that a warrant-
less search and seizure of an alien's property in Mexico did
not violate the Fourth Amendment. The search was con-
ceived, planned, and ordered in the United States, carried out
in part by agents of the United States Drug Enforcement
Agency, and conducted for the express purpose of obtaining
evidence for use in a United States trial. See id. at 262-63.
Still, the Court treated the alleged violation as having "oc-
curred solely in Mexico." Id. at 264. In reaching this
conclusion, the Court never mentioned that the search was
both planned and ordered from within the United States.
Instead, it focused on the location of the primary constitution-
ally significant conduct at issue: the search and seizure itself.
We think Verdugo controls this case. Like the warrantless
search there, the primary constitutionally relevant conduct at
issue here--Bamaca's torture--occurred outside the United
States. The same was not true in Lamont. And Cardenas,
on which Harbury also relies, was decided prior to Verdugo.
We thus turn to Harbury's primary claim--that Bamaca was
entitled to Fifth Amendment protection even though the
torture occurred in Guatamala.
Acknowledging that aliens are entitled to fewer constitu-
tional protections than citizens, see Matthew v. Diaz, 426 U.S.
67, 77-79 (1976), and that constitutional protections (even for
citizens) diminish outside the U.S., see Verdugo, 494 U.S. at
270, Harbury argues that the Constitution's most fundamen-
tal protections, like the Fifth Amendment prohibition of tor-
ture, apply even to foreign nationals located abroad. In
support of this claim, she cites three lines of cases holding
that non-citizens outside the United States enjoy constitution-
al rights. First, courts have held that inhabitants of non-
state territories controlled by the U.S.--such as unincorporat-
ed territories or occupation zones after war--are entitled to
certain "fundamental" constitutional rights. See Examining
Bd. of Eng'rs., Architects & Surveyors v. Otero, 426 U.S. 572,
599 n.30 (1976); Balzac v. Porto Rico, 258 U.S. 298, 312-13
(1922); United States v. Tiede, 86 F.R.D. 227, 242-44 (U.S.
Ct. Berlin 1979). Courts have also held that excludable
aliens--aliens apprehended outside the U.S. while attempting
to cross the border and held within the U.S. pending trial--
likewise enjoy basic due process rights against gross physical
abuse. See Amanullah v. Nelson, 811 F.2d 1, 9 (1st Cir.
1987); Lynch v. Cannatella, 810 F.2d 1363, 1374 (5th Cir.
1987). Finally, courts have suggested that non-resident
aliens abducted by the government for trial within the United
States have basic due process rights. See United States v.
Toscanino, 500 F.2d 267 (2d Cir. 1974); see also United
States v. Lambros, 65 F.3d 698, 701 (8th Cir. 1995).
Although these cases demonstrate that aliens abroad may
be entitled to certain constitutional protections against mis-
treatment by the U.S. Government, we do not agree that they
establish that Bamaca's torture ran afoul of the Fifth Amend-
ment. To begin with, in adjudicating the application of
constitutional rights to aliens, the Supreme Court has
looked--among other factors--to whether the aliens have
"come within the territory of the United States and developed
substantial connections with this country." See Verdugo, 494
U.S. at 271. In all three sets of cases Harbury cites, the
aliens had a substantially greater connection to the U.S. than
Bamaca. The excludable alien cases involved persons physi-
cally present in the U.S. The occupation zone cases involved
foreign nationals under de facto U.S. political control. And
although the alien in Toscanino had been tortured in a
foreign country, he was abducted to and tried in the United
States. In fact, the Second Circuit, treating the torture and
abduction as part of the pre-trial process, focused on the fact
that allowing the government to seize and torture defendants
before bringing them to trial would threaten the integrity of
the United States judicial process. See Toscanino, 500 F.2d
at 275-79. In contrast to the aliens involved in these cases,
Bamaca was not physically present in the United States, not
tortured in a country in which the United States exercised de
facto political control, and not abducted for trial in a United
States court.
Even if the cases Harbury cites were not so easily distin-
guishable, this issue would also be controlled by Verdugo.
Though that case involved extraterritorial application of the
Fourth Amendment, the Court also dealt with the extraterri-
torial application of the Fifth:
Indeed, we have rejected the claim that aliens are enti-
tled to Fifth Amendment rights outside the sovereign
territory of the United States. In Johnson v. Eisentrag-
er ... the Court held that enemy aliens arrested in
China and imprisoned in Germany after World War II
could not obtain writs of habeas corpus in our federal
courts on the ground that their convictions for war
crimes had violated the Fifth Amendment.... The Ei-
sentrager opinion acknowledged that in some cases con-
stitutional provisions extend beyond the citizenry; "the
alien ... has been accorded a generous and ascending
scale of rights as he increases his identity with our
society." But our rejection of the extraterritorial appli-
cation of the Fifth Amendment was emphatic:
"Such extraterritorial application of organic law would
have been so significant an innovation in the practice
of governments that, if intended or apprehended, it
could scarcely have failed to excite contemporary com-
ment. Not one word can be cited. No decision of this
Court supports such a view.... None of the learned
commentators on our Constitution has even hinted at
it. The practice of every modern government is op-
posed to it."
Id. at 269 (quoting Johnson v. Eisentrager, 339 U.S. 763, 770,
784-85 (1950)). To be sure, as Harbury points out, this
language is dicta. But it is firm and considered dicta that
binds this court. See, e.g., United States v. Oakar, 111 F.3d
146, 153 (D.C. Cir. 1997) ("[c]arefully considered language of
the Supreme Court, even if technically dictum, generally must
be treated as authoritative") (internal quotation omitted).
Harbury also correctly observes that Eisentrager--the case
relied on by Verdugo--concerned rights of enemy aliens
during wartime. But the Supreme Court's extended and
approving citation of Eisentrager suggests that its conclu-
sions regarding extraterritorial application of the Fifth
Amendment are not so limited. For these reasons, we agree
with the district court that Harbury failed to allege a valid
claim for deprivation of her husband's Fifth Amendment due
process rights.
Familial Association
The Constitution protects familial relationships from un-
warranted government interference in at least two circum-
stances. First, parents have a right to maintain their rela-
tionship with their children. See, e.g., Santosky v. Kramer,
455 U.S. 745 (1982) (holding that a state must support allega-
tions of parental neglect with at least clear and convincing
evidence before terminating the rights of parents in their
natural child); Stanley v. Illinois, 405 U.S. 645 (1972) (strik-
ing down a law automatically making children of unwed
fathers wards of the State upon the death of their mother).
Second, family members have a constitutional right to make
certain private decisions regarding family affairs, such as
whether to procreate, see Roe v. Wade, 410 U.S. 113 (1972)
(abortion), Griswold v. Connecticut, 381 U.S. 479 (1965) (con-
traception), or whether to send children to public school, see
Pierce v. Soc'y of Sisters, 268 U.S. 510 (1925). Harbury's
claims rest on both categories of rights.
Relying on the first category, Harbury argues that by
murdering Bamaca, CIA defendants unconstitutionally de-
prived her of her right to continuing association with her
husband. The district court dismissed this claim because
Harbury failed to allege that the defendants murdered Bama-
ca for the purpose of ending her marriage. Urging us to
reverse, Harbury argues that the district court's purpose
requirement conflicts with Supreme Court cases finding due
process violations in circumstances involving far less serious
interference with familial relationships--such as laws requir-
ing children to attend public schools--and no direct purpose-
ful interference with the family. To be sure, these cases
involve the second category of rights--the right to make
private familial decisions--but Harbury argues that there is
no principled reason to impose a purpose requirement in the
first category and not the second. Harbury also argues that
since officials will likely never kill anyone for the purpose of
terminating a marriage, a purpose requirement effectively
eviscerates familial association claims based on wrongful kill-
ings.
Our sister circuits have split on whether familial association
claims require allegations of purposeful interference. Some
circuits have held that the Due Process Clause only protects
against direct, intentional interference with familial relation-
ships. In Ortiz v. Burgos, for example, the First Circuit held
that the stepfather and siblings of a prisoner beaten to death
by guards had no independent cause of action for loss of
familial association because the beating was not specifically
intended to deprive them of their association with the dece-
dent. See 807 F.2d 6, 8 (1st Cir. 1986); see also Shaw v.
Stroud, 13 F.3d 791, 804-05 (4th Cir. 1994); Harpole v.
Arkansas Dep't of Human Servs., 820 F.2d 923, 927-28 (8th
Cir. 1987); Trujillo v. Bd. of County Comm'rs., 768 F.2d
1186, 1189-90 (10th Cir. 1985). But other circuits have held
in cases of wrongful killings of children that the surviving
parent had an independent due process claim, even though
the killing was not specifically intended to disrupt the parent-
child relationship. In one such case, Bell v. City of Milwau-
kee, the Seventh Circuit held that the father (but not the
siblings) of a decedent wrongfully killed by the police had a
constitutional claim for loss of association with his son even
though the killing was motivated by racism, not intent to
deprive him of his son's companionship. See 746 F.2d 1205,
1242-48 (7th Cir. 1984); see also Smith v. City of Fontana,
818 F.2d 1411, 1417-20 (9th Cir. 1987); Estate of Bailey v.
County of York, 768 F.2d 503, 509 n.7 (3d Cir. 1985).
In considering Harbury's claim, we are mindful of the
caution we must exercise in expanding the liberty interests
protected by substantive due process. "As a general matter,"
the Supreme Court said in Collins v. Harker Heights, "[we
have] always been reluctant to expand the concept of substan-
tive due process because guideposts for responsible decision-
making in this unchartered area are scarce and open-ended.
The doctrine of judicial self-restraint requires us to exercise
the utmost care whenever we are asked to break new ground
in this field." 503 U.S. 115, 125 (1992) (citation omitted).
Bearing this caution in mind, as well as the obvious propo-
sition that it operates with even greater force on the lower
federal courts, we think that two features of Supreme Court
precedent bar us from accepting Harbury's claim. First,
although the Court has never directly addressed the issue in
the context of a wrongful killing, it has found a constitutional
right to continuing association with family members only in
cases involving direct, purposeful interference with familial
relationships. See, e.g., Stanley, 405 U.S. 645; Santosky, 455
U.S. 745. As the First Circuit observed, the Court has
"never held that governmental action that affects the parental
relationship only incidentally ... is susceptible to challenge
for a violation of due process." Ortiz, 807 F.2d at 8. Equally
significant, the Supreme Court has recognized a right to
continuing familial association only in cases involving parent-
child relationships. In doing so, the Court has emphasized
the importance of the parent-child bond. See, e.g., Stanley,
405 U.S. at 651 (noting that the Court had previously deemed
the rights to conceive and raise one's children as "essential,"
"basic," and "far more precious ... than property rights");
Santosky, 455 U.S. at 753 (referring to the "fundamental
liberty interest of natural parents in the care, custody, and
management of their child," and to parents' "vital interest in
preventing the irretrievable destruction of their family life").
Even circuit court cases that have expanded the right to
include indirect deprivations of association involve only par-
ent-child relationships, see Bell, 746 F.2d at 1242-48; Smith,
818 F.2d at 1417-20; Estate of Bailey, 768 F.2d at 509 n.7.
And in one such case, Bell, the court expressly declined to
broaden the right to include the decedent's surviving siblings.
See 746 F.2d at 1245-48.
Harbury's claim thus lies beyond Supreme Court precedent
in not one but two respects: it concerns neither a parent-child
relationship nor purposeful interference with a familial rela-
tionship. On the facts of this case, therefore, we need not
decide whether the constitutional right to continuing familial
association requires allegations of purpose to interfere with
the right, nor whether the constitutional right to familial
association extends to the marriage relationship. We hold
only that in view of Supreme Court precedent and in light of
the Court's admonition in Collins, we cannot extend a consti-
tutional right to familial association to cases where, as here,
the government has indirectly interfered with a spousal rela-
tionship. The First Circuit, declining to extend due process
protection to incidental deprivations of familial association,
used language we think particularly compelling:
Although we recognize and deplore the egregious nature
of the alleged government action in this case, we hesitate,
in the rather novel context of this case, to erect a new
substantive right upon the rare and relatively uncharted
terrain of substantive due process when case law, logic
and equity do not command us to do so. It does not
necessarily follow that the incidental deprivation of even
a natural parent's parental rights is actionable simply
because the relevant deprivation of life is shocking. In
addition, a conclusion that governmentally caused termi-
nation of, or encroachment on, the parental interest in
the continued relationship with a child always is action-
able would constitutionalize adjudication in a myriad of
situations we think inappropriate for due process scruti-
ny, including the alleged wrongful prosecution and incar-
ceration of a child or the alleged wrongful discharge of a
child from a state job, forcing the child to seek employ-
ment in another part of the country. Moreover, the
problem of giving definition and limits to a liberty inter-
est in this vast area seems not only exceedingly difficult
but to a considerable extent duplicative of the wide-
spread existence of state causes of action, as in this case,
which provide some compensation to grieving relatives.
Ortiz, 807 F.2d at 9. Emphasizing that it sought "neither to
minimize the loss of a family member nor to denigrate the
fundamental liberty interest in matters of family life that has
long been a part of our constitutional fabric," the First Circuit
concluded: "even an interest of great importance may not
always be entitled to constitutional protection.... Our con-
clusion is simply that, in light of the limited nature of the
Supreme Court precedent in this area, it would be inappropri-
ate to extend recognition of an individual's liberty interest in
his or her family or parental relationship to the facts of this
case." Id. at 9-10 (citations omitted). For essentially similar
reasons, we are doubly reluctant to make the even broader
expansion of the right to familial association sought by Har-
bury.
Harbury's second familial association claim, this one
brought against State Department and NSC defendants,
charges that their failure to disclose information about Bama-
ca violated her right to make intimate personal decisions
about her marriage. To support this claim, she cites Planned
Parenthood v. Casey, where the Supreme Court stated that
decisions within the "private realm of family life" are among
"the most intimate and personal choices a person may make
in a lifetime," and are "central to the liberty protected by the
Fourteenth Amendment." 505 U.S. 833, 851 (1992). Relying
on this broad language, Harbury asserts that she had a due
process right to decide how best to save her husband from
torture and to retrieve his remains and bury him after he
died. Defendants, she urges, prevented her from making
these decisions by concealing information about his torture
and death.
We agree with the district court that Harbury's claim lacks
foundation in constitutional jurisprudence. The broad gener-
al principle Harbury cites appears never to have been applied
to a situation even remotely like hers. Nor does she explain
why it should be. We therefore decline to extend the right in
the manner she proposes.
III
This brings us to our only area of disagreement with the
district court: Harbury's access to courts claim. "[T]he right
to sue and defend in the courts," the Supreme Court long ago
said, "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." Chambers v.
Baltimore & Ohio R.R., 207 U.S. 142, 148 (1907). The right
not only protects the ability to get into court, see, e.g., Ex
parte Hull, 312 U.S. 546 (1941) (striking down a prison
regulation prohibiting prisoners from filing petitions for habe-
as corpus unless they are found "properly drawn" by a state
official), but also ensures that such access be "adequate,
effective, and meaningful." Bounds v. Smith, 430 U.S. 817,
822 (1977).
Applying this standard, several of our sister circuits have
found that government cover-ups can infringe the right of
access to courts. In Bell, 746 F.2d 1205, for example, city
police officers planted evidence and contrived a false story to
make their killing of an unarmed man whom they shot in the
back seem an act of self-defense. The victim's father filed a
wrongful death action against both the officer and the city,
but the case settled for an amount so small that the father
never cashed the check. When the true facts of the killing
emerged twenty years later, the victim's survivors sued the
police, alleging that the conspiracy to conceal the facts had
interfered with their ability to seek legal redress. Sustaining
a jury verdict for plaintiffs, the Seventh Circuit found that
"[t]hough [Bell's father] filed a wrongful death claim in state
court soon after the killing, the cover-up and resistance of the
investigating police officers rendered hollow his right to seek
redress...." Id. at 1261.
The Fifth Circuit reached a similar result in Ryland v.
Shapiro, 708 F.2d 967 (5th Cir. 1983), recognizing a potential
denial of the right of access when an alleged cover-up delayed
release of the facts of a murder for eleven months. Noting
that "[d]elay haunts the administration of justice," the court
held that the victim's parents could state a denial of access
claim since "[t]he defendants' actions could have prejudiced
[their] chances of recovery in state court because the result-
ing delay would cause stale evidence and the fading of
material facts in the minds of potential witnesses." Id. at
974, 975; see also Swekel v. City of River Rouge, 119 F.3d
1259, 1263-64 (6th Cir. 1997) (plaintiff must "[show] that the
defendants' actions foreclosed her from filing suit in state
court or rendered ineffective any state court remedy she
previously may have had"); Delew v. Wagner, 143 F.3d 1219,
1222 (9th Cir. 1998) (same); Vasquez v. Hernandez, 60 F.3d
325, 329 (7th Cir. 1995) (plaintiffs must allege either that they
have "been prevented from pursuing a tort action in state
court or that the value of such an action has been reduced by
the cover-up"); cf. Barrett v. United States, 798 F.2d 565, 575
(2d Cir. 1986) ("Unconstitutional deprivation of a cause of
action occurs when government officials thwart vindication of
a claim by violating basic principles that enable civil claimants
to assert their rights effectively.").
Citing Bell, Ryland, and other similar cases, Harbury
argues that NSC and State Department defendants, by giving
her "false and deceptive information related to her husband
and otherwise concealing whether he was alive, ... deprived
Plaintiff of her right ... to adequate, effective, and meaning-
ful access to the courts." See Complaint p 174. The Govern-
ment responds that Harbury "failed to identify a ... constitu-
tional right to have federal officials report on what they knew
about a foreign revolutionary leader captured by a foreign
government on the field of battle." See Appellee's Br. at 14.
According to the Government, this failure distinguishes Har-
bury's case from Bell and other cases where police officers
charged with investigating a crime destroy, conceal, or manu-
facture evidence in violation of statutory duties.
We think the Government misreads Harbury's complaint.
She never alleges that defendants breached a duty to disclose
information to her. Rather, she alleges that they affirmative-
ly deceived her into believing that they were actively seeking
information about her husband. Instead of saying (as they
could have) that they were unable to discuss Bamaca's situa-
tion, they sought to lull her into believing that they were
working on her behalf, intending to prevent her from suspect-
ing that the U.S. Government was actually involved in Bama-
ca's torture. One of their express objectives, Harbury alleg-
es, was to prevent her from suing them. Viewed this way,
and regardless of whether Defense and NSC officials had an
affirmative duty to provide information to Harbury in the
first place, the complaint states a clear case of denial of
access to courts. Cf. Barrett, 798 F.2d 565 at 575 (though
defendant government officials "were not under any duty to
volunteer to the estate information that would alert it to the
existence of a claim against the federal government and
certain of its officials ... government officials were not free
to arbitrarily interfere with the estate's vindication of its
claims").
The district court, though agreeing that Harbury might be
able to base an access to courts claim on the alleged cover-up,
nevertheless dismissed her claim because she had not yet
finished prosecuting the tort claims also pleaded in her
complaint. In reaching this conclusion, the district court
relied on Swekel, where the Sixth Circuit rejected an access
to courts claim because the plaintiff had not yet filed suit in
state court: "Before filing an 'access to courts' claim, a
plaintiff must make some attempt to gain access to the courts;
otherwise, how is this court to assess whether such access
was in fact 'effective' and 'meaningful'?" 119 F.3d at 1264.
The district court also cited Delew, 143 F.3d 1219, where the
Ninth Circuit dismissed an access to courts claim even though
the plaintiff, unlike the plaintiff in Swekel, had actually filed a
wrongful death action based on the same set of facts. Stating
that "because the [plaintiffs'] wrongful death action remains
pending in state court, it is impossible to determine" whether
"the defendants' cover-up violated [the plaintiffs'] right of
access to the courts by rendering 'any available state court
remedy ineffective,' " the court gave plaintiffs leave to re-file
"if in fact the defendants' alleged cover-up actually rendered
all state court remedies ineffective." Id. at 1222-23.
In some ways this case does resemble Swekel and Delew.
Like plaintiffs in those cases, Harbury alleges that due to the
cover-up, "key witnesses ... may now be dead or missing ...
crucial evidence may have been destroyed, and ... memories
may have faded." Harbury v. Deutch, No.
96-00438 (D.D.C. filed Mar. 23, 1999) at 18. If her complaint
rested solely on such allegations, we might agree with the
district court. But Harbury's complaint goes further: not
limited to wrongful death and intentional infliction of emotion-
al injury, it alleges that but for the cover-up, she might have
been able to save her husband's life. "As a result of the
fraudulent statements and intentional omissions made by the
Department of State and the [NSC] defendants ... Plaintiff
was unable to take appropriate actions to save her husband's
life. Specifically, Plaintiff was foreclosed from effectively
seeking adequate legal redress, petitioning the appropriate
government authorities, and seeking to publicize her hus-
band's true plight through the media." Complaint p 98. Am-
plifying this point at oral argument, Harbury's counsel ex-
plained that if defendants had disclosed the information they
possessed about Bamaca, Harbury could have sought an
emergency injunction based on an underlying tort claim for
intentional infliction of emotional distress. Even if the NSC
and State Department officials had simply said they could not
discuss Bamaca's situation, counsel explained, Harbury would
have filed her FOIA requests immediately, thus perhaps
obtaining the information necessary to seek an injunction in
time to save her husband's life. Instead, believing defen-
dants' reassurances, Harbury waited for the State Depart-
ment and NSC officials to complete their "investigation."
If Harbury's allegations are true, then defendants' reassur-
ances and deceptive statements effectively prevented her
from seeking emergency injunctive relief in time to save her
husband's life. Because his death completely foreclosed this
avenue of relief, nothing would be gained by requiring Har-
bury to postpone this aspect of her access to courts cause of
action until she finishes prosecuting her tort claims.
The Government offers another reason for affirming the
district court. Relying on Swekel, it argues that since Har-
bury "always had the option to file suit with or without
information from any defendant," her claim should be dis-
missed based on her failure to file such a suit. See Appellee's
Br. at 15 n.5 and accompanying text. But again, Swekel is
very different from this case. There, police allegedly con-
cealed the identity of a potential defendant involved in a fatal
accident until after the statute of limitations had run. When
the victim's spouse filed a deprivation of access to courts
claim, the Sixth Circuit dismissed, observing that "[no] evi-
dence ... establishes that [plaintiff] even attempted to go to
the state court in the first instance." Swekel, 119 F.3d at
1264. The trial court, moreover, had found that the plaintiff
had been aware of all essential facts of the accident except
the defendant's identity, and thus could have filed a "John
Doe" suit despite the cover-up. See id. at 1261. Harbury, in
contrast, asserts that she "had no idea that the United States
Government was aware of, much less involved in, her hus-
band's detention and torture." Thus "unaware that there was
a potential claim of any kind against any U.S. officials,"
Harbury had "no reason to believe that she could state a
claim in United States courts." Appellant's Reply Br. at 14.
Unlike in Swekel, therefore, not only did defendants allegedly
deprive Harbury of any opportunity to seek relief in the
courts, but they effectively concealed most of the "essential
facts" of the case, including U.S. Government involvement,
until after emergency injunctive relief would have been futile.
Cf. Swekel, 119 F.3d at 1264 n.2 (recognizing that plaintiff
need not file a prior suit if "it would be completely futile for a
plaintiff to attempt to access the state court system").
Concluding that Harbury has pleaded an access to courts
claim, however, does not end our task, for the district court
also found that even if Harbury could bring such a claim,
defendants would be entitled to qualified immunity. For
purposes of qualified immunity, it is not enough for a plaintiff
to allege that a defendant's conduct violated a right that is
clearly established in general terms. Instead, "the right the
official is alleged to have violated must have been 'clearly
established' in a more particularized ... sense: The contours
of the right must be sufficiently clear that a reasonable
official would understand that what he is doing violates that
right. This is not to say that an official action is protected by
qualified immunity unless the very action in question has
previously been held unlawful ... but it is to say that in the
light of pre-existing law the unlawfulness must be apparent."
Anderson v. Creighton, 483 U.S. 635, 640 (1987) (citations
omitted).
Applying this standard, the district court dismissed Har-
bury's access to courts claim because it includes no allegation
of "nefarious conduct," such as manufacturing false evidence
or destroying or refusing to collect evidence. See Harbury,
No. 96-00438 at 19-20. Harbury claims only that defendants
denied knowledge of Bamaca's torture and made "allegedly
disingenuous overtures to assist her." See id. at 20. Because
of this, and because State Department and NSC defendants
did not conceal details about "local crimes" they were charged
with investigating, but rather information about a "high-
ranking commander of the Guatemalan National Revolution-
ary Union resistance forces" who had been captured during
an armed conflict with the Guatemalan army, the district
court ruled that it "[could not] hold that Ambassador McAfee,
NSA Lake, or the unnamed State Department and NSC
defendants would have reasonably known that they [had to]
be forthcoming in discussing the intelligence that they had
received about Bamaca." Id. at 20-21.
We read Harbury's complaint quite differently. For one
thing, as we have already shown, Harbury alleges not that
defendants violated an affirmative duty to provide informa-
tion, but that they affirmatively misled her. See supra at 20.
Furthermore, defendants misled her, she alleges, precisely
because they feared that if they gave her accurate informa-
tion about Bamaca's fate, she might sue them. The relevant
inquiry in Harbury's case, then, is this: would an objectively
reasonable official have thought it clearly unconstitutional to
affirmatively mislead Harbury for the express purpose of
preventing her from filing a lawsuit? See Crawford-El v.
Britton, 951 F.2d 1314, 1317 (D.C. Cir. 1992).
Before answering this question, we must dispose of the
Government's argument that under Harlow, any inquiry into
defendants' purpose in misleading Harbury is irrelevant to
their qualified immunity defense. It is true that Harlow
holds that an official's "subjective good faith" is irrelevant to
evaluating a claim of qualified immunity. See Harlow, 457
U.S. at 815-19. But we have understood Harlow principally
to prevent inquiry into officials' knowledge or beliefs about
the legality of their conduct. Except in national security
cases--and the Government has not yet raised a national
security defense in this case--we have not read Harlow to
prohibit inquiry into an official's motives unrelated to knowl-
edge of the law, when "a bad [motive] could transform an
official's otherwise reasonable conduct into a constitutional
tort." See Crawford-El, 951 F.2d at 1317; see also Halperin
v. Kissinger, 807 F.2d 180, 186 (D.C. Cir. 1986) ("No court, as
far as we are aware, has extended Harlow's proscription of
subjective inquiry beyond the issue of knowledge of the law
and intent related to knowledge of the law, except in a
national security context."). The Supreme Court, moreover,
has not only confirmed that Harlow allows inquiry into intent
unrelated to knowledge of the law, but also held that plaintiffs
making constitutional claims based on improper motive need
not meet any special heightened pleading standard. See
Crawford-El v. Britton, 523 U.S. 574 (1998).
Returning to the question before us--Should it have been
clear to an objectively reasonable official that affirmatively
misleading Harbury for the purpose of preventing her from
filing a lawsuit would violate her constitutional rights?--we
think the answer is plainly yes. Not only have five of our
sister circuits held that cover-ups that conceal the existence
of a cause of action (or make it difficult to prosecute one)
infringe the constitutional right of access to courts, and not
only are we unaware of any contrary decision, but we think it
should be obvious to public officials that they may not affir-
matively mislead citizens for the purpose of protecting them-
selves from suit. Harlow developed qualified immunity to
protect public officials from "insubstantial lawsuits" that
threatened to "[divert] official energy from pressing public
issues" and "[deter] able citizens from acceptance of public
office," as well as to ensure that these officials could exercise
their discretion without fear of suit. See Harlow, 457 U.S. at
814. Qualified immunity was never intended to protect public
officials who affirmatively mislead citizens for the purpose of
protecting themselves from being held accountable in a court
of law. Joining our sister circuits, we therefore hold that
when public officials affirmatively mislead citizens in order to
prevent them from filing suit, they violate clearly established
constitutional rights and thus enjoy no qualified immunity.
IV
In conclusion, we reiterate what we said at the outset:
because the district court dismissed Harbury's complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6), our task
is to assess neither the strength nor plausibility of Harbury's
allegations, but to determine whether, assuming the truth of
her allegations, "[she] can prove [any] set of facts in support
of [her] claim which would entitle [her] to relief." Conley,
355 U.S. at 45-46. Applying that standard, we reverse the
district court's dismissal of Harbury's access to courts claim
and remand for further proceedings. In all other respects we
affirm.
So ordered.