Backward-looking right of access claims

"Backward-looking" right of access claims
Sousa v Marquez, US Court of Appeals, Second Circuit, Docket No. 12-403-cv

The Supreme Court has categorized right-of-access claims as either forward-looking or backward-looking.

In the forward-looking category "are claims that systemic official action frustrates a plaintiff or plaintiff class in preparing and filing suits at the present time" (see Christopher v. Harbury, 536 US 403). In “forward-looking” claims, official action is presently denying an opportunity to litigate.

“Backward-looking” right of access claims involve claims not in aid of a class of suits yet to be litigated but of specific cases that cannot now be tried (or tried with all material evidence) no matter what official action may be in the future. To prevail in a backward-looking claims action, the plaintiff must show that the defendants caused the plaintiff to lose a meritorious claim or a chance to sue on a meritorious claim.

Bryan Sousa, a former employee at the Connecticut Department of Environmental Protection, sued Devin Marquez, a staff attorney at the Connecticut Department of Administrative Services, in an action characterized by the Second Circuit as a “backward- looking” right of access claim. Sousa contended that he did not win his earlier employment-related suit because of false statements and deliberate omissions in an investigative report issued by Marquez.

The Second Circuit rejected Sousa’s appeal from an adverse district court ruling, explaining that:

[1] “Even assuming that so-called ‘backward looking’ right-of-access claims are viable in this Circuit, such claims cannot proceed if the plaintiff, asserting that the government concealed or manipulated relevant facts, was aware of the key facts at issue at the time of the earlier lawsuit. In other words, “A plaintiff with knowledge of the crucial facts and an opportunity to rebut opposing evidence does have adequate access to a judicial remedy” available to him or to her in the course of that litigation.

[2] The District Court’s opinion in the prior suit demonstrates that the Court did not rely on statements or omissions in Marquez’s report and, therefore, Sousa has not shown that Marquez’s purported actions caused or resulted in a violation of his rights.

The decision is posted on the Internet at: