Christopher v. Harbury, 536 U.S. 403, 18 (2002)

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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 adequate statement was error. For even on the assumption that Harbury could surmount all difficulties raised by treating 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 Freedom 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 argument 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 military 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, battery, 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 concerns, 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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