Christopher v. Harbury, 536 U.S. 403, 19 (2002)

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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 Haris directed at a third person, the actor is subject to liability if he intentionally 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 exception 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 predicate 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.

421

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