A backward-looking right of access? Not yet.

The Supreme Court recognizes a "right of access" claim that can give rise to a lawsuit. It accrues when a government officials impedes your right to bring a lawsuit. It usually arises in the "forward looking" context, i.e., someone frustrated your ability to bring suit. Are there "backwards looking" claims also, where the plaintiff finds out post-lawsuit that someone manipulated relevant facts that hurt the outcome?

The case is Sousa v. Marquez, decided on December 13. Sousa had previously sued his government employer for retaliation under the First Amendment, when he complained about violence in the workplace. That case went to the Second Circuit a few years ago (578 F.3d 164 (2d Cir. 2009)). In the end, Sousa lost that case because the district court said that his interest in the speech was outweighed by his employer's interest in maintaining an efficient workplace. In other words, Sousa lost under what we call Pickering balancing.

Anyway, after that case ended, Sousa learned through a Freedom of Information request that his employer “discovered and concealed strong evidence in favor of [Sousa’s] contention that workplace violence was a serious and ongoing problem at the DEP and had chosen not to interview other witnesses who would have testified to the same effect.” He sued again in district court, arguing that this information would have greatly enhanced his First Amendment retaliation suit and that its concealment impeded his "right of access" to federal court.

Sousa loses the case. It is not clear that the right of access principle applies in a "backward-looking" manner. If it does, the Second Circuit has not yet recognized that interpretation of the Supreme Court's "right of access" cases. But it is clear that "when a plaintiff in a backward looking access suit alleges that the government concealed or manipulated relevant facts, the claim may not proceed if the plaintiff was, at the time of the earlier lawsuit, aware of the facts giving rise to his claim." The Second Circuit (Cabranes, Raggi and Carney) finds that Sousa knew about the violent conditions in his workplace, and that "he was necessarily aware of the alleged inaccuracies in Marquez's reports at the time he litigated his prior suit, even if he dd not then appreciate that Marquez's distortions were (as he now claims) intentionally false or misleading." The Court adds, "Sousa could have requested discovery with respect to the facts presented (or purportedly omitted) in Marquez’s reports." So, even with a backward-looking right of access claim, Sousa loses. He should have known about and could have pursued this information in the prior lawsuit that he now claims was impeded by defendant's manipulation of the relevant facts.