Greg Herrick, an antique-aircraft owner, sought FAA records concerning the Fairchild F-45 aircraft under the Freedom of Information Act. The FAA refused, invoking FOIA Exemption 4 for confidential trade-secret and commercial information. Herrick sued in federal court in Wyoming, arguing that a 1955 Fairchild letter authorizing public use of the records had waived any trade-secret protection. The Tenth Circuit held that the letter had eliminated the documents' trade-secret status, but affirmed for the FAA because Fairchild had allegedly restored protection by objecting to disclosure after Herrick made his request.
Less than a month after the Tenth Circuit's decision, Brent Taylor, Herrick's friend and a fellow antique-aircraft enthusiast, filed his own FOIA request for the same documents. Taylor raised not only the waiver argument but also issues Herrick had not pursued concerning whether trade-secret protection could be restored after a waiver. Taylor had not participated in, controlled, financed, or received notice of Herrick's lawsuit. Although the two men were acquaintances, Taylor used Herrick's lawyer and had received documents Herrick obtained during discovery.
The District Court for the District of Columbia held Taylor's suit barred by claim preclusion under the Eighth Circuit's multifactor doctrine of “virtual representation.” The D.C. Circuit affirmed under its own test, finding aligned interests, adequate representation by Herrick, and a close relationship between the two men. The Supreme Court granted review to resolve a circuit conflict over whether and when a nonparty may be precluded through virtual representation.
Issue #1
Whether federal common law permits an expansive “virtual representation” doctrine that precludes a nonparty based on aligned interests, adequate litigation by another person, and a sufficiently close relationship.
Holding
No. A nonparty ordinarily may not be bound by a judgment, and courts may apply nonparty preclusion only through established, limited categories rather than an open-ended doctrine of virtual representation.
Reasoning
Claim preclusion and issue preclusion serve important goals: they prevent repetitive litigation, conserve judicial resources, and promote reliance on judgments. But those goals are constrained by the historic and due-process-based principle that a person generally deserves her own day in court and cannot be bound by an in personam judgment entered in litigation to which she was not a party.
The Court identified six established grounds for binding a nonparty: agreement to be bound; certain preexisting substantive legal relationships, such as successive property owners or assignors and assignees; adequate representation in a properly representative proceeding; control of the earlier litigation; relitigation through a representative or agent of a party already bound; and a special statutory scheme that expressly forecloses successive suits consistent with due process.
The D.C. Circuit's account of adequate representation was too loose. Aligned interests and a strong incentive to litigate do not alone make one litigant the adequate representative of an absent person. At a minimum, the interests must be aligned, and either the earlier litigant must have understood that she was acting in a representative capacity or the first court must have taken care to protect the absent person's interests. Notice may also be required in some settings.
An expansive virtual-representation rule would effectively permit courts to create common-law class actions without the safeguards that due process and Federal Rule of Civil Procedure 23 require. It would allow nonparty preclusion based on shared interests and informal relationships while bypassing procedures designed to ensure adequate representation of absent persons.
The Court also rejected a flexible, equitable inquiry into whether successive litigants are “close enough.” That approach conflicts with the Court's insistence that exceptions to nonparty preclusion remain limited and defined. It would also invite costly discovery and uncertain, fact-intensive litigation over preclusion, even though preclusion doctrine is meant to simplify litigation.
FOIA's public-interest character did not justify a broader rule. FOIA directs agencies to provide records to the requesting person, and Congress imposed no limit on successive actions by separate requesters. Concerns about repetitive public-law suits are better addressed by stare decisis, ordinary litigation incentives, or statutory procedures enacted by Congress—not by creating an additional common-law preclusion doctrine.
Issue #2
Whether the adverse judgment in Herrick's FOIA action barred Taylor's separate FOIA action under any recognized ground for nonparty preclusion.
Holding
Not on the record before the Court. Taylor was not bound under agreement, substantive legal relationship, adequate representation, control, or a special statutory scheme; the case was remanded only to determine whether Taylor was acting as Herrick's agent in bringing the second suit.
Reasoning
Four recognized grounds plainly did not apply. Taylor never agreed to be bound by Herrick's case; the two men had no qualifying substantive legal relationship; Taylor did not control Herrick's litigation; and FOIA contains no special statutory scheme restricting successive suits by different requesters.
Herrick did not adequately represent Taylor in the sense required for nonparty preclusion. There was no indication that Herrick understood himself to be litigating on Taylor's behalf, that Taylor knew of the Wyoming litigation, or that the Wyoming court used procedures to protect Taylor's interests as an absent person.
Taylor did not purport to sue as Herrick's legal representative. But Taylor acknowledged that preclusion could be proper if he was actually acting as Herrick's undisclosed agent in an effort to relitigate Herrick's loss. The D.C. Circuit had noted possible tactical maneuvering but did not resolve that question under agency principles.
The Court therefore vacated and remanded for the lower courts to determine whether an agency relationship existed. The Court cautioned that a mere suspicion or “whiff” of tactical maneuvering is insufficient. Agency principles suggest that Taylor could be treated as Herrick's agent only if Herrick had a right to control Taylor's conduct of the litigation.
Issue #3
Whether Taylor, rather than the defendants asserting preclusion, should bear the burden of proving that he was not acting as Herrick's agent.
Holding
No. The defendants bear the burden of pleading and proving nonparty preclusion, including any alleged agency relationship.
Reasoning
Claim preclusion, like issue preclusion, is an affirmative defense. Ordinarily, the party invoking an affirmative defense must establish every element needed to support it, and the Court found no basis to create a special exception for alleged collusive or agency-based relitigation.
Although evidence of collusion or control may be more readily available to the plaintiff accused of acting as an agent, that practical difficulty does not justify shifting the burden. Defendants can use targeted interrogatories and depositions to obtain relevant evidence, just as litigants must do when an opposing party has superior access to proof.