U.S. Supreme Court Rejects “Virtual Representation” Theory, Permits Successive FOIA Actions
September 3, 2008
A unanimous U.S. Supreme Court has stemmed the efforts of lower courts to cut back on multiple lawsuits on the same issue, clearing the way for a Freedom of Information Act (FOIA) plaintiff to go after government records where another plaintiff already has failed.
In Taylor v. Sturgell, two “close associates” and fellow antique aircraft enthusiasts, who had intended to restore an older model F-45 airplane together, filed separate and successive FOIA actions seeking technical documents on the aircraft from the Federal Aviation Administration (FAA). The plaintiff in the initial lawsuit – the owner of the aircraft – was denied the documents after the United States Tenth Circuit Court of Appeals agreed with the FAA that the documents were subject to the trade-secret exemption. The Tenth Circuit, however, noted that its ruling was based on two assumptions never challenged by that plaintiff: (1) that the documents’ trade secret status could be restored even though it had been waived in 1955 and (2) that the aircraft’s corporation could properly assert trade secret status after the initiation of a FOIA request.
Less than a month after this ruling, the other plaintiff filed his FOIA request and subsequently sued the FAA in a federal court in Washington, D.C. He retained the same lawyer as in the previous action and presented the same documents provided in discovery in the first action – but in the D.C. action he challenged the two assumptions upon which the Tenth Circuit’s ruling was based. The D.C. Circuit affirmed the lower court’s dismissal of the case, based on the rule of law that a nonparty can be bound by a judgment if it is “virtually represented” by a party. The D.C. Circuit found that because the second plaintiff had an identity of interest to the first plaintiff, adequate representation of those interests in the first lawsuit, and a “close relationship” with the first plaintiff, he had been “virtually represented” in the earlier litigation and could not relitigate the issues.
Writing for the Supreme Court in reviewing the D.C. Circuit’s ruling, Justice Ruth Bader Ginsberg declined to recognize a “virtual representation” theory. Instead, the Court identified the narrow circumstances under which a nonparty to a prior lawsuit would be precluded from litigating the same issue in his own name. The allowable categories of nonparty preclusion, according to the Court, are: (1) by contractual agreement to be bound; (2) where there is a pre-existing “substantive legal relationship;” (3) “in certain limited circumstances” where a nonparty has been adequately represented and shares the same interest as a party to a suit, i.e., class actions and suits brought by trustees, guardians, and other fiduciaries; (4) where a nonparty assumed control over the prior litigation; (5) where a unsuccessful party attempts relitigation by proxy; and (6) preclusion by statute.
The Court, however, did suggest that the third category – adequacy of representation – could apply beyond the legally prescribed fiduciary relationships and the confines in which it is already recognized under the Federal Rules of Civil Procedure. First, the Court observed that although some federal circuits used the “virtual representation” label, the test employed “is no broader than the recognized exception for adequate representation.” The Court approvingly cited the Sixth Circuit’s test which requires “an express or implied legal relationship in which parties to the first suit are accountable to non-parties who file a subsequent suit raising identical issues.” The Court then explained that, for purposes of nonparty preclusion, representation is adequate if the original plaintiffs understood that they were acting in a representative capacity or if there had been special procedures in the original action to safeguard the nonparties’ interests.
In so ruling, the Court rejected the FAA’s argument that nonparty preclusion should be broader in FOIA actions and other public law litigation. Though the Court acknowledged that “the duty to disclose under FOIA is owed to the public generally,” it recognized that relief – the disclosure of information – is granted to an individual plaintiff, not the public at large. The Court also observed that both the state and the federal government have the ability to pass legislation to limit successive suits under public laws, and that the absence of such restrictions for FOIA suits suggest that the judiciary should not take it upon itself to impose such limitations.
For more information, contact:
Corinne A. Irish
212.513.3455
corinne.irish@hklaw.com
toll free: 1.888.688.8500
Related Practices