Backward-looking right of access claims

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"Backward-looking" right of access claimsSousa v Marquez, US Court of Appeals, Second Circuit, DocketNo. 12-403-cv
The Supreme Court has categorized right-of-access claims aseither forward-looking or backward-looking.
In the forward-looking category "are claims thatsystemic official action frustrates a plaintiff or plaintiff class in preparingand filing suits at the present time" (see Christopher v. Harbury, 536 US403). In “forward-looking” claims, official action is presently denyingan opportunity to litigate.
“Backward-looking” right of access claims involve claims notin aid of a class of suits yet to be litigated but of specific cases thatcannot now be tried (or tried with all material evidence) no matter whatofficial 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 Departmentof Environmental Protection, sued Devin Marquez, a staff attorney at theConnecticut Department of Administrative Services, in an action characterizedby the Second Circuit as a “backward- looking” right of access claim. Sousacontended that he did not win his earlier employment-related suit because offalse statements and deliberate omissions in an investigative report issued byMarquez.
The Second Circuit rejected Sousa’s appeal from an adverse district court ruling, explainingthat:
[1] “Even assuming that so-called ‘backward looking’right-of-access claims are viable in this Circuit, such claims cannot proceedif the plaintiff, asserting that the government concealed or manipulatedrelevant facts, was aware of the key facts at issue at the time of the earlierlawsuit. In other words, “A plaintiff with knowledge of the crucial facts andan opportunity to rebut opposing evidence does have adequate access to ajudicial remedy” available to him or to her in the course of that litigation.
[2] The District Court’s opinion in the prior suitdemonstrates that the Court did not rely on statements or omissions inMarquez’s report and, therefore, Sousa has not shown that Marquez’s purportedactions caused or resulted in a violation of his rights.
The decision is posted on the Internet at:http://www.ca2.uscourts.gov/decisions/isysquery/d78e4359-b8c7-4710-b019-28febe041619/1/doc/12-403_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/d78e4359-b8c7-4710-b019-28febe041619/1/hilite/