Christopher v. Harbury, 536 U.S. 403, 14 (2002)

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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 particular risk inherent in backward-looking claims. Characteristically, 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 remedy 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 attempt to litigate, even if frivolous, as a condition of bringing a nonfrivolous backward-looking access claim.

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