Taylor v. Sturgell

553 U.S. 880 (2008)


Taylor (P) filed a lawsuit under the FOIA seeking certain documents from the Federal Aviation Administration. Greg Herrick, P’s friend, had previously brought an unsuccessful suit seeking the same records. The two men have no legal relationship, and there is no evidence that P controlled, financed, participated in, or even had notice of Herrick’s earlier suit. Nevertheless, the D. C. Circuit held P’s suit precluded by the judgment against Herrick because, in that court’s assessment, Herrick qualified as P’s “virtual representative.” The D. C. Circuit found both of the necessary conditions for virtual representation well met. As to identity of interests, the court emphasized that P and Herrick sought the same result-release of the F-45 documents. Herrick owned an F-45 airplane, and therefore had “if anything, a stronger incentive to litigate” than P, who had only a “general interest in public disclosure and the preservation of antique aircraft heritage.” Turning to adequacy of representation, the court acknowledged that some other Circuits regard notice of a prior suit as essential to a determination that a nonparty was adequately represented in that suit. The court deemed notice an “important” but not an indispensable element in the adequacy inquiry. It then concluded that Herrick had adequately represented P even though P had received no notice of Herrick’s suit. The court relied on Herrick’s “strong incentive to litigate” and P’s later engagement of the same attorney, which indicated to the court P’s satisfaction with that attorney’s performance in Herrick’s case. The court also found its “close relationship” criterion met, for Herrick had “asked P to assist him in restoring his F-45” and “provided information to P that Herrick had obtained through discovery.” P “did not oppose Fairchild’s characterization of Herrick as his ‘close associate.’ The Supreme Court granted certiorari, to resolve the disagreement among the Circuits over the permissibility and scope of preclusion based on “virtual representation.”