Nahmod Law

Right of Access Claims, Cover-Ups and the Seminal Harbury Decision

Christopher v. Harbury, Cover-Ups and Right of Access Claims

In Christopher v. Harbury, 122 S. Ct. 2179 (U.S. 2002), the Supreme Court dealt with a denial of access claim brought by the plaintiff widow against federal government officials, alleging that they intentionally deceived her in concealing information about her husband’s detention and torture in Guatemala (where he was a citizen) by Guatemalan military officers paid by the Central Intelligence Agency (CIA). She argued that this deception deprived her of information, or reason to seek information, that she could have used to bring a lawsuit that might have saved her husband’s life. After the case was decided by the District of Columbia Circuit, she was left with her right of access claim, various common law claims including intentional infliction of emotional distress and an international law claim against the CIA. Reversing and ruling against the plaintiff for failure to state a denial of access claim, the Court, in an opinion by Justice Souter explained:

“As stated in the complaint, [the denial of access count] 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 subsequent, informal amendment accepted by the Court of Appeals, [plaintiff] fails to seek any relief presently available for denial of access to courts that would be unavailable otherwise.”

Two Kinds of Access Claims: Forward-Looking and Backward-Looking

At the outset, the Court observed that its denial of access cases were not as wide-ranging as those in the circuits. Still, for present purposes the circuit denial of access cases could be divided into two categories: (1) those forward-looking claims in which systemic official action hindered a plaintiff in preparing and filing suits in the present, as in many prison cases; and (2) those backward-looking claims involving cases that cannot now be tried, or tried with all material evidence, “no matter what official action may be in the future,” because the official conduct caused the loss or inadequate settlement of a meritorious case, as in cover up cases. After observing that denial of access claims have been based on various constitutional provisions (the Article IV Privileges and Immunities Clause, the First Amendment Petition Clause, the Fifth and Fourteenth Amendment Due Process Clauses and the Fourteenth Amendment Equal Protection Clause), the Court then commented that the justification for recognizing both kinds of claims was 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 effective vindication for a separate and distinct right to seek judicial relief for some wrong.” In short, a denial of access claim was “ancillary” to the underlying claim “without which a plaintiff cannot have suffered injury by being shut out of court.” Consequently, the plaintiff who asserts a denial of access claim must describe the underlying cause of action (the predicate claim) in the complaint with enough particularity to give the defendant notice.

The Harbury Plaintiff’s Backward-Looking Claim

The Court went on to apply this approach to the Harbury plaintiff’s denial of access claim, which it characterized as solely backward-looking, and found that claim “not even close” to stating a cause of action for denial of access since the predicate claim was not identified with any specificity. Hence, her denial of access claim should be dismissed for failure to state a claim.

Waller v. Hanlon, A Recent Fifth Circuit Cover-Up Decision

In Waller v. Hanlon, 922 F.3d 590 (5th Cir. 2019), the plaintiffs, survivors of the decedent who had been fatally shot by a police officer, alleged, in connection with their excessive force claim, that police officers also conspired to cover up the true circumstances of decedent’s death in violation of the plaintiffs’ clearly established right of access to the courts. The Fifth Circuit noted that this was a backward-looking claim within the meaning of Harbury and that it satisfied the first and second requirements of such claims: the underlying claim was not frivolous and the alleged conduct frustrated the litigation of that claim. However, the plaintiffs did not explain what the alleged conduct “cost” them. “[T]he plaintiffs are actively—and, so far, successfully—litigating that [excessive force] claim. They filed hundreds of pages of pleadings in the district court supported by dozens of exhibits containing detailed forensic evidence in support of their claim. They survived [the shooting officer’s] pleading-stage assertion of qualified immunity first in the district court and now on appeal.” Thus it was too early to say that plaintiffs’ excessive force claim on behalf of decedent has been “permanently compromised.”


1. The discussion of Harbury is adapted from section 3:84 of my Treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2020)(West & Westlaw). Many post-Harbury decisions are collected and discussed there.

2. Harbury itself involved federal officials so that section 1983, which covers state action only, was not applicable. Still, Harbury clearly governs section 1983 claims based on denials of the right of access to the courts.

3. Waller demonstrates that right of access plaintiffs must allege and prove that their right of access has actually been harmed (the “cost”), not merely inconvenienced, by the defendants’ conduct.

I invite you to follow me on Twitter @NahmodLaw.

Written by snahmod

December 8, 2020 at 10:58 am

Posted in Uncategorized

%d bloggers like this: