Taylor v. Sturgell

This case is really two cases in one, because in order to understand what is at issue in the case before the Supreme Court, you have to understand another, preceding, case. The issue before the Supreme Court has to do with that complex and ill-defined doctrine called "res judicata" or finality of judgments. The case which caused the lower courts to invoke the doctrine of "res judicata" related to a Freedom of Information Act request for design plans of an antique (1935) Fairchild Aircraft. What is at stake here, in a word, is whether a subset of the doctrine of "res judicata," called "virtual representation" applies in this case so that Mr. Taylor is precluded from bringing suit.

This is a mouthful, and so I propose to start at the beginning and show you why we have a problem. Let's begin with the underlying (earlier) case.

The Freedom of Information Act ("FOIA") Case

As with many things in life, this case starts out with two guys, Herrick and Taylor. Both of them are members of the Antique Aircraft Association ("AAA"). Herrick owns an F-45 aircraft, manufactured by a predecessor of the Fairchild Corp. in 1935; Taylor is good at tinkering with old planes. Herrick wanted the plans and specifications for the original F-45, and so he filed a request, under the FOIA, with Fairchild for the information. Fairchild consulted with the Federal Aviation Administration ("FAA") and decided to withhold the information based on Exemption 4 of the FOIA (5 USC sec 552(b)(4)), which allows someone not to disclosure "trade secrets and commercial or financial information obtained from a person and privileged or confidential"). When Fairchild refused Herrick's request, Herrick took it to trial. The key piece of evidence for Herrick was a 1955 letter from Fairchild's predecessor authorizing the disclosure of specifications the information to the public (the case is Herrick v. Garvey, 298 F3d 1184 (10 Cir. 2002)). Nevertheless, the US District Court for the District of Wyoming sided with the FAA/Fairchild. The 10th Circuit affirmed and added an interesting thought to the mix. It said that Fairchild's 1955 letter authorizing disclosure had deprived the F-45 documents of their status as a trade secret but, because Herrick had not challenged on appeal the district court's assumption that a later letter from Fairchild revoking that authorization restored their status as a trade secret, the 10th Circuit assumed without deciding that revocation would have such an effect. In other words, Fairchild tried to revoke its decision to disclose, but Herrick had not challenged the legitimacy of that revocation. Why? I have no idea... Hence, the revocation stood. No disclosure.

Thus, Mr. Herrick was out of luck. But an avenue seemed to be opened for a subsequent litigant to pick up the point mentioned by the 10th Circuit and emphasize that a subsequent attempt to revoke the authorization to disclose the specifications really didn't have the effect of restoring the specifications as trade secrets. That is where our case comes in...

Enter Mr. Taylor

About a month after the 10th Circuit issued its Herrick decision in 2002, Taylor, the executive director of the AAA, and an associate/friend of Herrick, filed a FOIA request for the same documents relating to the F-45 that Herrick had sought. No, this isn't a showing of Bill Murray's Groundhog's Day; it merely is the way the litigation proceeded. The FAA refused to respond the Taylor's request and so Taylor filed suit, using the same lawyer as Herrick had. He explained this by saying that the lawyer was already "up to speed" on the issue.

But now, rather than being able to bring the argument hinted at by the 10th Circuit in the Herrick case, Taylor discovered that he was thrown out of court before he could make any arguments. Why? By the doctrine of "virtual representation," a subset or aspect of the larger doctrine of "res judicata." We are no longer in Wyoming and the 10th Circuit, but we are now in the District of Columbia Circuit Court of Appeals. The DC Court of Appeals (490 F3d 965 (2007)) held that a party can be precluded from bringing a claim if that party was "virtually represented" by a party in a prior case. Now, the whole concept of "virtual representation" is about as squishy as grandma's pillows, but in making its determination that the doctrine applied here, the court went through a "five-factor" test. It might be helpful to list them for you.

The court held that a party is a virtual representative of a party in a later suit if:

"It held that it was necessary (1) for the parties to have the same interests and (2) for the party to the first suit to have adequately represented the party to the second suit. In addition, it held that one of three other factors must be present: (3) a close relationship between the parties, (4) substantial participation in the first litigation by the party to the second litigation, or (5) tactical maneuvering on the part of the party to the second litigation to avoid the preclusive effect of the first litigation."

Applying the Test to the Facts...

It would be tedious in this essay, and not too profitable, to try to go through all the tests and link them with facts from the case, even though that is what the Supreme Court must do in their decision. Suffice it to say that two important ways that a court determines "same interests" are whether there is a legal relationship between the parties in the two cases and whether the party in the second case could have intervened in or been a party in the first. In its Petition for Certiorari, Taylor's attorneys pounce on these tests and claim that the tests themselves were not an accurate way of stating how the other circuit courts dealt with the issue and, even if the tests were applied, Taylor should have gotten his day in court. Thus, the question presented, from Taylor's perspective, is as follows:

"Can a party be precluded from bringing a claim, under a theory of “virtual representation,” and thereby denied the due process right to a day in court, when the party had no legal relationship with any party to the previous litigation and did not receive notice of that litigation?"

The nub of Taylor's case is that he had no agreement or relationship with Herrick that would make Herrick a virtual representative of Taylor.

Conclusion

This case thus gives the Court an occasion to define the contours of the "virtual representation" doctrine. The decision will probably be based more on philosophy than specific-factor tests--i.e., whether a specific Justice believes that litigants should, in nearly all circumstances, get their day in Court, unless there is some kind of explicit collusion between predecessors who have lost a case. It is a fascinating case for that reason, as well as the underlying reasons behind the case in the first place.

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