CHRISTOPHER, FORMER SECRETARY OF STATE, et al. v. HARBURY

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403 OCTOBER TERM, 2001
Syllabus
CHRISTOPHER, FORMER SECRETARY OF STATE,
et al. v. HARBURY
certiorari to the united states court of appeals for
the district of columbia circuit
No. 01–394. Argued March 18, 2002—Decided June 20, 2002
Respondent-plaintiff Harbury alleges that Government officials inten-
tionally deceived her in concealing information that her husband, a Gua-
temalan dissident, had been detained, tortured, and executed by Guate-
malan army officers paid by the Central Intelligence Agency (CIA), and
that this deception denied her access to the courts by leaving her
without information, or reason to seek information, with which she
could have brought a lawsuit that might have saved her husband’s life.
In the District Court, Harbury raised against the CIA, State Depart-
ment, National Security Council, and officials of each, common- and in-
ternational law tort claims, and claims under Bivens v. Six Unknown
Fed. Narcotics Agents, 403 U. S. 388, on behalf of her husband’s estate,
and on her own behalf for violation of, inter alia, her constitutional right
of access to courts. The District Court dismissed the Bivens claims.
With respect to the access-to-courts counts, the court held that Harbury
had not stated a valid cause of action because (1) having filed no prior
suit, she could only guess how the alleged coverup might have preju-
diced her rights to bring a separate action, and (2) the defendants would
be entitled to qualified immunity. Harbury appealed the dismissal of
her Bivens claims, but the District of Columbia Circuit reversed only
the dismissal of her Bivens claim against petitioners for denial of access
to courts.
Held: Harbury has not stated a claim for denial of judicial access.
Pp. 412–422.
(a) Access-to-courts claims fall into two categories: claims that sys-
temic official action frustrates a plaintiff in preparing and filing suits at
the present time, where the suits could be pursued once the frustrating
condition has been removed; and claims of specific cases that cannot be
tried, no matter what official action may be in the future. Regardless
of whether the claim turns on a litigating opportunity yet to be gained
or an opportunity already lost, the point of recognizing an access claim
is to provide some effective vindication for a separate and distinct right
to seek judicial relief for some wrong. Thus, the access-to-courts right
is ancillary to the underlying claim, without which a plaintiff cannot
have suffered injury by being shut out of court. It follows that the

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404 CHRISTOPHER v. HARBURY
Syllabus
underlying claim is an element that must be described in the complaint
as though it were being independently pursued; and that, when the ac-
cess claim (like this one) looks backward, the complaint must identify a
remedy that may be awarded as recompense but not otherwise available
in some suit that may yet be brought. The underlying cause of action
and its lost remedy must be addressed by allegations in the complaint
sufficient to give the defendant fair notice. The facts of this case under-
score the need for care in stating a tenable predicate cause of action.
The alleged acts were apparently taken in the conduct of foreign rela-
tions by the National Government, and any judicial enquiry will raise
concerns for the separation of powers in trenching on matters com-
mitted to the other branches. Since the need to resolve such constitu-
tional issues should be avoided where possible, the trial court should be
in a position as soon as possible to know whether a constitutional ruling
may be obviated because the denied access allegations fail to state a
claim. Pp. 412–418.
(b) Harbury’s complaint did not come even close to stating a constitu-
tional denial-of-access claim upon which relief could be granted. It did
not identify the underlying cause of action that the alleged disruption
had compromised, leaving the District Court and the defendants to
guess as to the unstated action supposedly lost and at the remedy being
sought independently of relief that might be available on the complaint’s
other counts. Harbury’s position did not improve when the Court of
Appeals gave her counsel an opportunity at oral argument to supply
the missing allegations. He stated that she would have brought an
action for intentional infliction of emotional distress as one wrong for
which she could have sought the injunctive relief that might have saved
her husband’s life. But that does not satisfy the requirement that a
backward-looking denial-of-access claim provide a remedy that could not
be obtained on an existing claim, for the complaint’s counts naming the
CIA defendants, including the Guatemalan officer who allegedly tor-
tured and killed her husband, are among the tort claims that survived
the motion to dismiss in the District Court. Harbury can seek damages
and possibly some sort of injunctive relief for the consequences of
the infliction of emotional distress alleged in those counts, although she
cannot obtain the order that might have saved her husband’s life. But
neither can she obtain such an order in her access claim, which there-
fore cannot recompense her for the unique loss she claims as a conse-
quence of her inability to bring an intentional-infliction action earlier.
Pp. 418–422.
233 F. 3d 596, reversed and remanded.

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405 Cite as: 536 U. S. 403 (2002)
Opinion of the Court
Souter, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and Stevens, O’Connor, Scalia, Kennedy, Ginsburg, and
Breyer, JJ., joined. Thomas, J., filed an opinion concurring in the judg-
ment, post, p. 422.
Richard A. Cordray argued the cause for petitioners.
With him on the briefs was Harry Litman.
Solicitor General Olson argued the cause for the United
States as amicus curiae urging reversal. With him on the
brief were Assistant Attorney General McCallum, Deputy
Solicitor General Clement, Patricia A. Millett, Barbara L.
Herwig, and Robert M. Loeb.
Jennifer K. Harbury, respondent, argued the cause and
filed a brief pro se.*
Justice Souter delivered the opinion of the Court.
Respondent-plaintiff in this case alleges that Government
officials intentionally deceived her in concealing information
that her husband, a foreign dissident, was being detained
and tortured in his own country by military officers of his
government, who were paid by the Central Intelligence
Agency (CIA). One count of the complaint, brought after
the husband’s death, charges that the official deception de-
nied respondent access to the courts by leaving her without
information, or reason to seek information, with which she
could have brought a lawsuit that might have saved her hus-
band’s life. The issue is whether this count states an action-
able claim. We hold that it does not, for two reasons. As
stated in the complaint, it fails to identify an underlying
cause of action for relief that the plaintiff would have raised
had it not been for the deception alleged. And even after a
*Briefs of amici curiae urging affirmance were filed for the Association
of Trial Lawyers of America by Jeffrey R. White and Laura C. Tharney;
for the Brennan Center for Justice by Jodie L. Kelley; and for the Law-
yers’ Committee for Civil Rights of the San Francisco Bay Area et al. by
Robert E. Borton, Scott D. Wiener, Robert Rubin, Steven R. Shapiro, and
Lucas Guttentag.

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406 CHRISTOPHER v. HARBURY
Opinion of the Court
subsequent, informal amendment accepted by the Court of
Appeals, respondent fails to seek any relief presently avail-
able for denial of access to courts that would be unavailable
otherwise.
I
Respondent Jennifer Harbury, a United States citizen, is
the widow of Efrain Bamaca-Velasquez, a Guatemalan rebel
leader who vanished in his own country in March 1992.
Since we are reviewing a ruling on motion to dismiss, we
accept Harbury’s factual allegations and take them in the
light most favorable to her. See Leatherman v. Tarrant
County Narcotics Intelligence and Coordination Unit, 507
U. S. 163, 164 (1993). Bamaca was captured by Guatemalan
army forces, including officers trained (in the United States),
paid, and used as informants by the CIA. App. 27–28 (Re-
spondent’s Second Amended Complaint ¶¶ 35–42, 46–47).
He was detained and tortured for more than a year to obtain
information of interest to the CIA, for which it paid. Id., at
28 (¶¶ 43, 46–47). Bamaca was summarily executed on or-
ders of the same Guatemalan officers affiliated with the CIA,
id., at 28–29 (¶¶ 48–49), sometime before September 1993,
id., at 31 (¶ 66), 34 (¶ 84). 1
The CIA knew as early as March 18, 1992, that the Guate-
malan army had captured Bamaca alive and shared this in-
formation with the White House and State Department.
Id., at 27 (¶ 35). Officials there, however, “intentionally mis-
led” Harbury, by “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 through his
detention and torture.” Id., at 31 (¶ 67).
1 Harbury says in a footnote in her brief before this Court that “[n]ew
evidence exists suggesting that Mr. Bamaca in fact survived well into 1994
if not longer,” Brief for Respondent 23, n. 3, but the factual allegations in
her complaint unequivocally state that the Government knew that Bamaca
had been killed by September 1993.

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Harbury makes three specific allegations of such Govern-
ment deception, all involving State Department officials,
while Bamaca was still alive. First, she says she contacted
several unnamed State Department officials in March 1993
to express concerns about her husband, who, according to
an eyewitness, was still alive. Id., at 29 (¶¶ 50, 55). They
“promised to look into the matter and to assist her,” ibid.,
but they neither gave her nor made public any information
about Bamaca, though CIA reports from as early as May
1993 confirmed he was still alive. Id., at 30 (¶¶ 56–59).
Second, in August 1993, Marilyn McAfee, then Ambassador
to Guatemala, advised Harbury to submit a written report
to the effect that remains found in a grave purported to be
her husband’s were not in fact his, as Harbury promptly did.
Id., at 30–31 (¶¶ 60–63). Although McAfee promised that
she would “investigate the matter immediately[,] report her
findings,” and keep Harbury “properly informed regarding
her husband’s situation,” ibid. (¶ 62), she gave Harbury no
information, id., at 31 (¶ 64). Third, in September 1993 (the
same month that the Government learned Bamaca was dead,
ibid. (¶ 66)), Harbury engaged in a week-long hunger strike
in Guatemala City to focus public attention on her husband’s
plight, but the State Department told her nothing, id., at
31–32 (¶¶ 64–68).
According to Harbury’s allegations, the Government’s de-
ceptions and omissions continued and intensified after Ba-
maca was killed. From October 1993 until March 1995, offi-
cials of the State Department and National Security Council
(NSC) repeatedly met and communicated with Harbury, id.,
at 32 (¶¶ 70–71), 34 (¶¶ 80, 83), 35 (¶ 86), conveying the im-
pression that they knew nothing for sure but were seeking
“concrete information” about her husband and would keep
her informed, id., at 33 (¶ 75). At one point, in November
1994, National Security Adviser Anthony Lake told Harbury
that the Government had “ ‘scraped the bottom of the bar-
rel’ ” to no avail in seeking information about her husband,

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id., at 34 (¶ 83). All along, however, the Government offi-
cials knew that Bamaca had been killed by the Guatemalan
army, ibid. (¶ 84), but engaged in misleading statements and
omissions because they did not want their complicity in Ba-
maca’s torture and death revealed, id., at 36 (¶ 92). Harbury
learned that her husband was dead only in March 1995 when
a congressman publicly announced that Bamaca had been
killed on the orders of a Guatemalan army colonel who was
also a paid agent of the CIA, ibid. (¶ 91).
II
A year later, in March 1996, Harbury filed suit in the
District Court for the District of Columbia against the
CIA, the State Department, the NSC, and members of each
in their official and individual capacities. The complaint, as
amended, listed 28 causes of action under federal, state, and
international law. App. 38–62. Although only the access-
to-courts counts directly concern us here, it is important to
know Harbury’s other claims, in order to determine whether
she has stated a tenable claim for denial of judicial access.
A
Harbury’s complaint sought relief in four categories other
than access to courts. First, on behalf of Bamaca’s estate,
she raised claims against the CIA defendants under the Due
Process Clause of the Fifth Amendment for his imprison-
ment, torture, and execution, seeking declaratory and injunc-
tive relief, 2 and money damages against the officials in their
individual capacities on the theory of Bivens v. Six Unknown
Fed. Narcotics Agents, 403 U. S. 388 (1971). App. 38–42
(counts 1–5). Next, on her own behalf, Harbury sued all the
Government defendants for declaratory and injunctive relief
2 The injunctive relief Harbury sought in these (and other) counts was
disclosure of information “concerning her husband’s death and the location
of his body” and an order to prevent “[d]efendants from taking such
actions in the future.” App. 63.

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and money damages under Bivens for violating her “right to
familial integrity” under the First, Fifth, and Ninth Amend-
ments by imprisoning, torturing, and executing her husband.
Id., at 42–48 (counts 6–13). Third, she alleged common law
torts invoking the Federal Tort Claims Act, 28 U. S. C.
§§ 2401(b) and 2675, App. 54, (1) on behalf of herself and her
husband’s estate against the CIA defendants for intentional
infliction of emotional distress by causing and conspiring to
cause Bamaca’s imprisonment, torture, and execution, id., at
55 (counts 18–19); (2) on behalf of her husband’s estate
against the CIA defendants for negligent supervision result-
ing in his false imprisonment, assault and battery, and
wrongful death, id., at 56–58 (counts 20–22); and (3) on her
own behalf against the State Department and NSC defend-
ants for intentional and negligent misrepresentation, con-
structive fraud, interference with the right to possess a
spouse’s dead body, id., at 58–62 (counts 24–27), and inten-
tional infliction of emotional distress by making “intention-
ally deceptive statements and omissions . . . about her hus-
band, including concealing whether or not he was alive”
id., at 58 (count 23). Fourth, Harbury brought a tort claim
said to arise under international law against the CIA defend-
ants on behalf of herself and her husband’s estate. Id., at
62 (count 28).
In addition to these counts for direct harm, Harbury relied
on the First and Fifth Amendments in raising four claims
that the deceptive statements and omissions of the State De-
partment and NSC defendants had unconstitutionally im-
peded her access to courts, id., at 49–51 (counts 14–15), as
well as her rights to speak freely and to petition the Govern-
ment, id., at 51–54 (counts 16–17). The basic theory as to
access to courts was that if the officials had shared what they
knew or simply said “no comment” rather than affirmatively
misleading Harbury into thinking they were doing some-
thing, she might have been able “to take appropriate actions

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to save her husband’s life.” Id., at 37 (¶ 98).3 Harbury
alleged that she “was foreclosed from effectively seeking
adequate legal redress.” Ibid.
B
For failure to state a claim, the District Court dismissed
all counts for declaratory and injunctive relief (counts 1–3,
6–9, 14, 16). It also dismissed all the Bivens counts: those
on behalf of Bamaca’s estate for his torture and execution
said to have violated his Fifth Amendment due process
rights (counts 4–5), and those brought on Harbury’s own be-
half based on the claimed violation of her constitutional
rights of familial association (counts 10–13), access to courts
(count 15), and free speech and access to Government (count
17). But the District Court denied the defendants’ motion
to dismiss the tort claims at common law (counts 18–27) and
international law (count 28).
With respect to the access-to-courts claims (including Har-
bury’s Bivens claim on this theory), the District Court ac-
knowledged that five Courts of Appeals “have held that con-
spiracies to destroy or cover-up evidence of a crime that
render a plaintiff ’s judicial remedies inadequate or ineffec-
tive violat[e] the right of access,” App. to Pet. for Cert. 43a,
but held that Harbury had not stated a valid cause of action
for two reasons. First, the court held that Harbury’s claim
“would have to be dismissed” (without prejudice) because,
having filed no prior suit, she had “nothing more than a
guess” as to how the alleged coverup might “have preju-
diced her rights to bring a separate action.” Id., at 46a.
Second, the District Court reasoned that the defendants in
any event would be entitled to qualified immunity in their
individual capacities because, unlike officials in coverup
cases who destroyed, manufactured, or hid evidence, the de-
3 Harbury did not allege that the State Department and NSC defendants
had an affirmative duty to disclose or to provide information about her
husband in response to her informal requests.

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fendants here did not act contrary to “clearly established
constitutional norms that a reasonable official would un-
derstand” in being less than “forthcoming in discussing
the intelligence that they received about Bamaca.” Id., at
48a–49a.
C
Harbury did not pursue her claims for declaratory or in-
junctive relief, and appealed only the dismissal of the Bivens
causes of action. Harbury v. Deutch, 233 F. 3d 596, 600–601
(CADC 2000). The Court of Appeals for the District of
Columbia Circuit affirmed the dismissal of the Bivens claims
of violations of Bamaca’s due process rights, 233 F. 3d, at
604, Harbury’s rights of familial association, id., at 606–607,
and her free speech and petition rights. 4 It reversed the
dismissal, however, of Harbury’s Bivens claim against the
State Department and NSC defendants for denial of access
to courts. Id., at 607–611.
The Court of Appeals agreed with the District Court that
a plaintiff who merely alleges without factual basis in the
conduct of a prior lawsuit that “ ‘key witnesses . . . may now
be dead or missing, . . . crucial evidence may have been de-
stroyed, and . . . memories may have faded’ ” generally falls
short of raising a claim for denial of access to courts. Id.,
at 609 (quoting the District Court). The court held, how-
ever, that Harbury’s allegations stated a valid access claim
insofar as she alleged that the Government’s conduct had
“effectively prevented her from seeking emergency injunc-
tive relief in time to save her husband’s life.” Ibid. The
District of Columbia Circuit went on to conclude that “[b]e-
cause his death completely foreclosed this avenue of relief,
nothing would be gained by requiring Harbury to postpone
this aspect of her access to courts cause of action until she
4 The Court of Appeals did not explicitly say that this Bivens claim
(count 17) was dismissed, but, in reversing the District Court, it spoke only
of a single claim of “access to courts.” 233 F. 3d, at 611 (“[W]e reverse the
district court’s dismissal of Harbury’s access to courts claim”).

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finishes prosecuting her tort claims.” Ibid. Nor did the
court hold that qualified immunity would bar suit because,
in its words, “we think it should be obvious to public officials
that they may not affirmatively mislead citizens for the pur-
pose of protecting themselves from suit.” Id., at 611.5
D
Three categories of claims were left in the case after the
Court of Appeals’s decision: the various common law tort
claims including intentional infliction of emotional distress,
the international law claim against the CIA defendants (nei-
ther of which the District Court had dismissed), and Har-
bury’s Bivens claims against the State Department and NSC
defendants for preventing access to courts (which the Court
of Appeals reinstated). The defendant officials petitioned
for review of the court’s holding as to the claim of denial of
access to courts, but Harbury did not cross-petition on the
other Bivens claims, leaving the Bivens access claim 6 the
sole matter before us. We granted certiorari, 534 U. S. 1064
(2001), because of the importance of this issue to the Govern-
ment in its conduct of the Nation’s foreign affairs, and now
reverse.
III
A
This Court’s prior cases on denial of access to courts have
not extended over the entire range of claims that have been
brought under that general rubric elsewhere, but if we con-
5 The District of Columbia Circuit denied rehearing, Harbury v. Deutch,
244 F. 3d 956, 957 (2001) (per curiam), and rehearing en banc, 244 F. 3d
960, 961 (2001), with two judges dissenting from denial of rehearing en
banc.
6 The petitioners did not challenge below the existence of a cause of
action under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388
(1971), and we express no opinion on the matter in deciding this case.

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Opinion of the Court
sider examples in the Courts of Appeals 7 as well as our own,
two categories emerge. In the first are claims that systemic
official action frustrates a plaintiff or plaintiff class in prepar-
ing and filing suits at the present time. Thus, in the prison-
litigation cases, the relief sought may be a law library for a
prisoner’s use in preparing a case, Bounds v. Smith, 430 U. S.
817, 828 (1977); Lewis v. Casey, 518 U. S. 343, 346–348 (1996),
or a reader for an illiterate prisoner, id., at 347–348, or sim-
ply a lawyer, ibid. In denial-of-access cases challenging fil-
ing fees that poor plaintiffs cannot afford to pay, the object
is an order requiring waiver of a fee to open the courthouse
door for desired litigation, such as direct appeals or federal
habeas petitions in criminal cases, 8 or civil suits asserting
family-law rights, e. g., Boddie v. Connecticut, 401 U. S. 371,
372 (1971) (divorce filing fee); M. L. B. v. S. L. J., 519 U. S.
102, 106–107 (1996) (record fee in parental-rights termination
action). In cases of this sort, 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 justifi-
cation for recognizing that claim, is to place the plaintiff in a
position to pursue a separate claim for relief once the frus-
trating condition has been removed.
The second category covers claims not in aid of a class of
suits yet to be litigated, but of specific cases that cannot now
7 See, e. g., Delew v. Wagner, 143 F. 3d 1219, 1222–1223 (CA9 1998);
Swekel v. River Rouge, 119 F. 3d 1259, 1263–1264 (CA6 1997); Vasquez v.
Hernandez, 60 F. 3d 325, 329 (CA7 1995); Foster v. Lake Jackson, 28 F. 3d
425, 429–431 (CA5 1994); Williams v. Boston, 784 F. 2d 430, 435 (CA1
1986); Bell v. Milwaukee, 746 F. 2d 1205, 1260–1266 (CA7 1984); Ryland v.
Shapiro, 708 F. 2d 967, 974–975 (CA5 1983).
8 E. g., Smith v. Bennett, 365 U. S. 708, 713–714 (1961) (filing fee for ha-
beas petitions); Burns v. Ohio, 360 U. S. 252, 255–258 (1959) (fee for direct
appeal in a criminal case); Mayer v. Chicago, 404 U. S. 189, 195–196 (1971)
(same, as to petty crime); Griffin v. Illinois, 351 U. S. 12, 16–20 (1956)
(transcript fee for appellate review in a criminal case).

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be tried (or tried with all material evidence), no matter what
official action may be in the future.9 The official acts
claimed to have denied access may allegedly have caused the
loss or inadequate settlement of a meritorious case, e. g., Fos-
ter v. Lake Jackson, 28 F. 3d 425, 429 (CA5 1994); Bell v.
Milwaukee, 746 F. 2d 1205, 1261 (CA7 1984) (“[T]he cover-up
and resistance of the investigating police officers rendered
hollow [the plaintiff ’s] right to seek redress”), the loss of an
opportunity to sue, e. g., Swekel v. River Rouge, 119 F. 3d
1259, 1261 (CA6 1997) (police coverup extended throughout
“time to file suit . . . under . . . statute of limitations”), or the
loss of an opportunity to seek some particular order of relief,
as Harbury alleges here. These cases do not look forward
to a class of future litigation, but backward to a time when
specific litigation ended poorly, 10 or could not have com-
menced, or could have produced a remedy subsequently un-
obtainable.11 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.
While the circumstances thus vary, the ultimate justifi-
cation for recognizing each kind of claim is the same.
Whether an access claim turns on a litigating opportunity
yet to be gained or an opportunity already lost, the very
point of recognizing any access claim is to provide some ef-
9 All such cases have been decided in the Courts of Appeals, see n. 7,
supra; we assume, without deciding, the correctness of the decisions.
10 Some Courts of Appeals have held that an actual attempt to sue is a
prerequisite to any such claim. See Delew, supra, at 1222–1223; Swekel,
supra, at 1263–1264. See also App. to Pet. for Cert. 46a (District Court
adopting this requirement). But cf. Swekel, supra, at 1264, n. 2 (“We rec-
ognize that in some instances it would be completely futile for a plaintiff
to attempt to access the state court system. The Plaintiff, however, has
not presented evidence that this is such a case”).
11 Bifurcation into forward-looking and backward-looking access claims
is a simplification, and not the only possible categorization, but it helps to
focus the issues here.

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fective vindication for a separate and distinct right to seek
judicial relief for some wrong. However unsettled the basis
of the constitutional right of access to courts, 12 our cases rest
on the recognition that the right is ancillary to the under-
lying claim, without which a plaintiff cannot have suffered
injury by being shut out of court. We indicated as much
in our most recent case on denial of access, Lewis v. Casey,
supra, where we noted that even in forward-looking prisoner
class actions to remove roadblocks to future litigation, the
named plaintiff must identify a “nonfrivolous,” “arguable”
underlying claim, id., at 353, and n. 3, and we have been
given no reason to treat backward-looking access claims any
differently in this respect. It follows that the underlying
cause of action, whether anticipated or lost, is an element
that must be described in the complaint, just as much as
allegations must describe the official acts frustrating the liti-
gation. It follows, too, that when the access claim (like this
one) looks backward, the complaint must identify a remedy
that may be awarded as recompense but not otherwise avail-
able 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.
12 Decisions of this Court have grounded the right of access to courts in
the Article IV Privileges and Immunities Clause, Chambers v. Balti-
more & Ohio R. Co., 207 U. S. 142, 148 (1907); Blake v. McClung, 172 U. S.
239, 249 (1898); Slaughter-House Cases, 16 Wall. 36, 79 (1873), the First
Amendment Petition Clause, Bill Johnson’s Restaurants, Inc. v. NLRB,
461 U. S. 731, 741 (1983); California Motor Transport Co. v. Trucking
Unlimited, 404 U. S. 508, 513 (1972), the Fifth Amendment Due Process
Clause, Murray v. Giarratano, 492 U. S. 1, 11, n. 6 (1989) (plurality opin-
ion); Walters v. National Assn. of Radiation Survivors, 473 U. S. 305, 335
(1985), and the Fourteenth Amendment Equal Protection, Pennsylvania
v. Finley, 481 U. S. 551, 557 (1987), and Due Process Clauses, Wolff v.
McDonnell, 418 U. S. 539, 576 (1974); Boddie v. Connecticut, 401 U. S. 371,
380–381 (1971).

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416 CHRISTOPHER v. HARBURY
Opinion of the Court
Like any other element of an access claim, the underlying
cause of action and its lost remedy must be addressed by
allegations in the complaint sufficient to give fair notice to a
defendant. See generally Swierkiewicz v. Sorema N. A.,
534 U. S. 506, 513–515 (2002). Although we have no reason
here to try to describe pleading standards for the entire
spectrum of access claims, this is the place to address a par-
ticular risk inherent in backward-looking claims. Charac-
teristically, the action underlying this sort of access claim
will not be tried independently,13 a fact that enhances the
natural temptation on the part of plaintiffs to claim too much,
by alleging more than might be shown in a full trial focused
solely on the details of the predicate action.
Hence the need for care in 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.14 And because these backward-
looking cases are brought to get relief unobtainable in other
suits, the remedy sought must itself be identified 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.
13 It may be the case that an underlying action has already been tried
to an inadequate result due to missing or fabricated evidence in an official
cover-up, see, e. g., Foster, 28 F. 3d, at 427; Bell, 746 F. 2d, at 1223, or
the claim may still be timely and subject to trial, but for a different rem-
edy than the one sought under the access claim, or against different
defendants.
14 The District of Columbia Circuit rejected the holding of some Circuits,
see n. 10, supra, that a filed suit on the underlying claim is a prerequisite
for a backward-looking access claim, 233 F. 3d 596, 608–610 (2000), because
it would foreclose access claims in the most heinous cases where a cover-up
was so pervasive that any timely attempt to litigate would have seemed
futile. In essence, the Court of Appeals rejected a rule requiring an at-
tempt to litigate, even if frivolous, as a condition of bringing a nonfrivolous
backward-looking access claim.

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Opinion of the Court
The particular facts of this case underscore the need for
care on the part of the plaintiff in identifying, and by the
court in determining, the claim for relief underlying the
access-to-courts plea. The action alleged on the part of all
the Government defendants (the State Department and NSC
defendants sued for denial of access and the CIA defendants
who would have been timely sued on the underlying claim
but for the denial) was apparently taken in the conduct of
foreign relations by the National Government. Thus, if
there is to be judicial enquiry, it will raise concerns for the
separation of powers in trenching on matters committed to
the other branches. See Department of Navy v. Egan, 484
U. S. 518, 529 (1988) (“ ‘[F]oreign policy [is] the province and
responsibility of the Executive’ ”); Chicago & Southern Air
Lines, Inc. v. Waterman S. S. Corp., 333 U. S. 103, 111 (1948)
(“[T]he very nature of executive decisions as to foreign pol-
icy is political, not judicial”). Since the need to resolve such
constitutional issues ought to be avoided where possible,
cf. Department of Housing and Urban Development v.
Rucker, 535 U. S. 125, 134–135 (2002); Ashwander v. TVA,
297 U. S. 288, 345–348 (1936) (Brandeis, J., concurring), the
trial court should be in a position as soon as possible in the
litigation to know whether a potential constitutional ruling
may be obviated because the allegations of denied access fail
to state a claim on which relief could be granted.
In sum, the right of a defendant in a backward-looking
access suit to obtain early dismissal of a hopelessly incom-
plete claim for relief coincides in this case with the obligation
of the Judicial Branch to avoid deciding constitutional issues
needlessly. For the sake of each, the complaint should state
the underlying claim in accordance with Federal Rule of
Civil Procedure 8(a),15 just as if it were being independently
pursued, and a like plain statement should describe any rem-
15 “A pleading which sets forth a claim for relief . . . shall contain . . . a
short and plain statement of the claim showing that the pleader is entitled
to relief . . . .”

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418 CHRISTOPHER v. HARBURY
Opinion of the Court
edy available under the access claim and presently unique
to it.
B
Under these standards, Harbury’s complaint did not come
even close to stating a constitutional claim for denial of ac-
cess upon which relief could be granted. While we cannot
read the complaint without appreciating Harbury’s anguish,
neither can we read it without appreciating the position of
the District Judge who described Harbury’s various requests
for relief as “nearly unintelligible.” App. to Pet. for Cert.
32a. Although the counts stating the Bivens claim for de-
nial of judicial access seemed to confirm that Harbury in-
tended to state a backward-looking claim, the complaint
failed to identify the underlying cause of action that the al-
leged deception had compromised, going no further than the
protean allegation that the State Department and NSC de-
fendants’ “false and deceptive information and concealment
foreclosed Plaintiff from effectively seeking adequate legal
redress.” App. 50 (¶ 175). The District Court and the de-
fendants were left to guess at the unstated cause of action
supposed to have been lost, and at the remedy being sought
independently of relief that might be available on the 24
other counts set out in the complaint.
Nothing happened in the Court of Appeals to improve
Harbury’s position. That court, too, was frustrated by the
failure to identify the predicate claim and the need for relief
otherwise unattainable,16 but it gave Harbury’s counsel an
opportunity at oral argument to supply the missing allega-
16 The court repeatedly pressed counsel to identify the underlying claim.
See Lodging for United States as Amicus Curiae Supporting Petitioners
7, 19, 44, 47 (respectively, “Now what would that [predicate] lawsuit have
looked like? . . . Can you explain what that lawsuit would look like? . . .
[A]ccess to do what[?] . . . And what would that lawsuit have looked
like?” (Tr. of Proceedings in Harbury v. Deutch, No. 99–5307 (Sept. 8,
2000))).

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Opinion of the Court
tions. Counsel responded that Harbury would have brought
an action for intentional infliction of emotional distress 17 as
one wrong for which she could have sought the injunctive
relief that might have saved her husband’s life:
“[I]f defendants had disclosed the information they pos-
sessed 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 ex-
plained, Harbury would have filed her FOIA requests
immediately, thus perhaps obtaining the information
necessary to seek an injunction in time to save her hus-
band’s life. Instead, believing defendants’ reassur-
ances, Harbury waited for the State Department and
NSC officials to complete their ‘investigation.’ ” 233
F. 3d, at 609.
The Court of Appeals adopted this theory in saying that the
“adequate legal redress” alleged for purposes of Harbury’s
access claims meant emergency injunctive relief in a now
futile lawsuit for intentional infliction of emotional distress,
17 Whether the Court of Appeals should have extended that opportunity
is not an issue before us. We see counsel’s answer as amounting to an
amendment of pleadings that still fails to cure the inadequacy of the
denial-of-access claim. In providing the clarification, Harbury’s counsel
appears to have been referring to the intentional-infliction counts against
the CIA defendants alleged elsewhere in her complaint, App. 55 (counts
18–19). See infra, at 422. Whatever latitude is allowed by federal notice
pleading, no one says Harbury should be allowed to construe “adequate
legal redress” to mean causes of action that were not even mentioned in
her complaint. As for Harbury’s position here, suffice it to say that a
brief to this Court, see Brief for Respondent at 22–33 (listing causes of
action that Harbury could have brought in 1993), is not the place to supple-
ment pleadings in response to a motion in the trial court to dismiss for
failure to state a claim.

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420 CHRISTOPHER v. HARBURY
Opinion of the Court
and it accepted this amendment as a sufficient statement of
an underlying cause of action.18 Ibid.
We think, however, that treating the amendment as an ad-
equate statement was error. For even on the assumption
that Harbury could surmount all difficulties raised by treat-
ing the underlying claim as one for intentional infliction of
emotional distress, 19 she could not satisfy the requirement
18 Harbury does not argue, based on her counsel’s argument before the
Court of Appeals, that the allegation that official deception delayed a Free-
dom of Information Act filing, which, presumably, might have involved a
lawsuit down the road if the defendants obstructed compulsory disclosure,
can independently serve as an underlying cause of action for purposes of
her access claim.
19 Because the access claim as “amended” by Harbury’s counsel at argu-
ment still fails to indicate any remedy that would be available in addition
to potential relief on presently existing tort claims, see infra, at 422, it is
unnecessary to resolve any of the claim’s other difficulties in satisfying
the need for nonfrivolous and arguable underlying causes of action. For
example, Harbury alleges no acts of concealment by NSC officials prior to
her husband’s death; it would appear that the Bivens access claim should
have been dismissed as to them on this ground alone. Nor does Harbury
allege a plausible causal link between an injunction that might have been
issued by a United States court and the behavior of the Guatemalan mili-
tary alleged to have killed Harbury’s husband. It is also uncertain
whether the underlying cause of action could be pursued consistently with
respect for separation of powers. And, of course, all of this assumes the
unlikely case that the Government would not certify the defendants’ action
as exercises of their official capacity, or that if the Government did, an
action could be maintained under the Federal Tort Claims Act. See 28
U. S. C. § 2680(h) (excluding certain intentional torts including assault, bat-
tery, false imprisonment, and misrepresentation); § 2680(k) (excluding
claims arising in a foreign country); cf. United States v. Shearer, 473 U. S.
52, 57 (1985) (no claim for negligent supervision of an employee resulting
in wrongful death in the military context). But see U. S. Information
Agency v. Krc, 989 F. 2d 1211, 1216 (CADC 1993) (“injunctive relief is
available” under the Federal Tort Claims Act for an intentional-tort claim
when the statute bars a damages remedy), cert. denied, 510 U. S. 1109
(1994).
Indeed, even if Harbury’s underlying claim could navigate these con-
cerns, it is not at all apparent that any or all of Harbury’s many factual
allegations would make out a claim for intentional infliction of emotional
distress. As a general matter, “[w]here [extreme and outrageous] conduct

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421 Cite as: 536 U. S. 403 (2002)
Opinion of the Court
that a backward-looking denial-of-access claim provide a
remedy that could not be obtained on an existing claim. We
have no choice but to assume that what Harbury intends to
claim as intentional infliction of emotional distress is set out
in the counts of her complaint naming the “CIA defendants,”
including the Guatemalan officer who allegedly tortured and
killed her husband, App. 55 (counts 18–19).20 These are
among the tort counts that survived the motion to dismiss
under the portion of the District Court’s order not before us.
If an intentional-infliction claim can be maintained at all,
Harbury can seek damages and even conceivably some sort
of injunctive relief for the demonstrated consequences of the
infliction alleged.21 It is true that she cannot obtain in any
present tort action the order she would have sought before
her husband’s death, the order that might have saved her
husband’s life. But neither can she obtain any such order
on her access claim, which therefore cannot recompense Har-
is directed at a third person, the actor is subject to liability if he intention-
ally or recklessly causes severe emotional distress to a member of such
person’s immediate family who is present at the time, whether or not such
distress results in bodily harm.” Restatement (Second) of Torts § 46(2)(a)
(1965). It is unclear that Harbury’s allegations meet either the intent or
the presence requirements. While there is room to argue for an excep-
tion to presence in some situations, cf. Jenco v. Islamic Republic of Iran,
154 F. Supp. 2d 27, 33 (DC 2001) (allowing publication to substitute for
presence), far from there being any allegation that the CIA defendants
intended her husband’s situation to become known to the public, the entire
thrust of Harbury’s pleadings is that every defendant tried to conceal it.
20 See n. 17, supra. There is also an emotional-distress count against
the State Department and NSC defendants, but based on their alleged
deception, see App. 58 (count 23), that is, simply in duplication of the acts
alleged to constitute denial of access, not on the acts underlying the predi-
cate claim.
21 While Harbury, if otherwise successful, might obtain injunctive relief
requiring the CIA to reveal the location of her husband’s remains (if
known), she could not get any injunction against continued deception on
the part of the State Department. But this is irrelevant, since Harbury
has given no indication that she contemplates any future litigation to
which continued deception would be relevant; she has not, in other words,
pleaded any surviving, forward-looking access claim.

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422 CHRISTOPHER v. HARBURY
Thomas, J., concurring in judgment
bury for the unique loss she claims as a consequence of her
inability to bring an intentional-infliction action earlier.
She has not explained, and it is not otherwise apparent, that
she can get any relief on the access claim that she cannot
obtain on her other tort claims, i. e., those that remain pend-
ing in the District Court. 22 And it is just because the access
claim cannot address any injury she has suffered in a way
the presently surviving intentional-infliction claims cannot 23
that Harbury is not entitled to maintain the access claim as
a substitute, backward-looking action.
The judgment of the Court of Appeals is reversed, and
the case is remanded for further proceedings consistent with
this opinion.
It is so ordered.
Justice Thomas, concurring in the judgment.
In Lewis v. Casey, 518 U. S. 343 (1996), after a review of
the constitutional text, this Court’s precedent, and tradition,
I could find no basis “for the conclusion that the constitu-
tional right of access imposes affirmative obligations on the
States to finance and support prisoner litigation.” Id., at
384–385 (concurring opinion). Likewise, I find no basis in
the Constitution for a “right of access to courts” that effec-
tively imposes an affirmative duty on Government officials
either to disclose matters concerning national security or to
provide information in response to informal requests. Not-
withstanding the Court of Appeals’ attempt to characterize
22 This might not be the case where, for example, the underlying claim
had been tried or settled for an inadequate amount given official deception,
see Foster, 28 F. 3d, at 427; Bell, 746 F. 2d, at 1223, and thus likely barred
by res judicata, or where the statute of limitations had run, see Swekel,
119 F. 3d, at 1261.
23 If Harbury’s existing tort claims should be dismissed for the reasons
identified in n. 19, supra, or other reasons unrelated to the alleged decep-
tion by the State Department officials, she would still be unable to identify
a predicate cause of action necessary to state a backward-looking access
claim.

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Thomas, J., concurring in judgment
the right of access differently, see Harbury v. Deutch, 233
F. 3d 596, 611 (CADC 2000) (characterizing the right as
“when public officials affirmatively mislead citizens in order
to prevent them from filing suit”), I would decide this case
solely on the ground that no such right is implicated here.
For that reason, I concur in the judgment.