Argument recap: Taylor v. Sturgell

Arguing for petitioner Brent Taylor, Adina Rosenbaum began with a restatement of the most forceful legal principle conveyed by the petitioner in his merits brief: the right of every person to have his day in court, and the corollary canon that a lawsuit does not decide the rights of non-parties. She jumped into the facts of the case directly, noting at the outset that Taylor had no legal relationship to Herrick, or any parties in the first case.

Chief Justice Roberts asked about the res judicata principles behind associational standing, which proved to be a recurring theme throughout the argument. Ms. Rosenbaum answered that the association must have authority to bring a case on behalf of an individual; otherwise, the individual cannot be bound by the courts determination.

Justice Souter then stepped in and asked a series of questions about the courts power to estop a collusive second party from bringing a caseeven absent a legal relationship between the first and second party. Ms. Rosenbaum answered that on the bare facts of Justice Souters hypothetical, where one litigant solicits another to file the same case, the second party would not be precluded from moving forward with the suit. When pressed, Ms. Rosenbaum clarified that collusion can lead to preclusion in cases in which one party exercises control over the others suit. Justice Ginsburg jumped in to help, noting that in the instant case, there was no finding of solicitation or collusion. Just as Ms. Rosenbaum agreed, Justices Souter and Alito pressed her further on the details of the petitioners collusion theory. Ms. Rosenbaum reiterated that the facts of petitioners case did not demonstrate collusion between Taylor and Herrick, and that the contours of collusion for the purposes of a res judicata inquiry need not be decided by the Court.

Justice Souter next asked Ms. Rosenbaum for any other conceivable reason for Taylor to file a FOIA request besides his interest in repairing Herricks plane. Ms. Rosenbaum answered that Taylors position as executive director of the Antique Aircraft Association, and his interest[] in antique aircraft and in aviation generally, could easily have motivated Taylor to file the request. Justice Scalia jumped in to note that a person does not have to have a reason for filing a FOIA requestnaked curiosity would be sufficient to entitle the person to request information from the government. Justice Souter countered that a person off the street wouldnt face the same collusion charges that two connected parties would face.

The next major theme concerned the structure of the FOIA statute. Ms. Rosenbaum pointed out that FOIA is set up to allow repeated litigation over the same records. That is, even though Congress could have structured FOIA in any way it saw fit, it chose explicitly to allow every individual to request information from the government. And once they have requested those records and [have] been denied . . . they have suffered a concrete and particular injury; and they have the right to seek judicial review of that injury. Also, Congress chose not to specify a single venue for FOIA suitsinstead, the suit could be brought where the records were located, where the requester resided, or in the District of Columbia. Because of the unique plan contemplated by Congress, this chosen scheme should not be altered through the back door of preclusion doctrine.

Ms. Rosenbaum next urged that a clear set of rules was critical in an area like res judicata, so that non-litigants may be able to determine easily when they will be bound by a judgment. Justice Scalia entered the conversation and asked which clear rules petitioner was advocating. Ms. Rosenbaum laid out clearly the three factors in which a non-party to a case may be bound by a judgment: first, where there is a legal relationship between the parties; second, where a non-party has had their full and fair opportunity to litigate in the prior case; and third, where the non-party was officially represented in the prior case. The discussion turned to class action lawsuits, which was a very good example of [the] representational relationship due to the protections built in for class members, such as members ability to withdraw from the suit and the judges obligation to look out for absent class members.

Justice Kennedy asked Ms. Rosenbaum whether providing a non-party with notice of the prior litigation would be sufficient to fit into the second category of having a full and fair opportunity to litigate. Ms. Rosenbaum answered no, because that would set[] up a system of mandatory voluntary intervention. In other words, the non-party receiving notice is still not fully and fairly litigating the prior case. A nonpartys knowledge of a case is not enough to ensure that her interests would be represented, or that she would be able to exercise control over the strategic decisions of the prior litigation.

The Justices continued to present Ms. Rosenbaum with a series of hypotheticals to flesh out petitioners theory on the required relationship between parties, including an extended dialogue on law firms and their representation of companies. Ms. Rosenbaum walked through the questions, making clear that a simple case involving a law firms representation of a company would bar the company from later litigating the case on its own. She then reserved her remaining four minutes for rebuttal.

Douglas Hallward-Driemeier, Assistant to the Solicitor General, then presented his argument for the Government. He began by asserting that it was not critical to find that [Taylor] was [Herricks] agent in the very technical sense of the Restatement of Agency to hold that Taylor was barred from litigating the FOIA request for records. Instead, he argued, a case in which multiple persons engage in coordinated successive litigation to vindicate a joint interest fell perfectly in line with normal principles of res judicata, even though it didnt have certain hallmark characteristics of other estopped cases.

Justice Ginsburg jumped in right away and distinguished the case, highlighting the lack of notice given to Taylor regarding Herricks suit. Mr. Hallward-Driemeier responded that even [p]etitioner acknowledge[d] that there can be circumstances in which Taylor would be bound to a judgment absent notice, namely, if the two parties had formed an agency relationship after the first suit. Justice Ginsburg clarified that, in Mr. Hallward-Driemeiers hypothetical, the outcome would be premised on the idea that the person really litigating the second claim is the principal, who is bound by the prior unfavorable ruling that she brought without an agent. Mr. Hallward-Driemeier agreed.

Mr. Hallward-Driemeier offered a case that illustrated how a court may act when the connection between the two parties is just shy of a true agency relationship. The court of appeals case, United States v. Des Moines Valley Railroad, involved the Government bringing a claim on behalf of a homesteader. Though the two parties did not share an official relationship, the Des Moines court found privity between them because the Government lent its name to allow the [homesteader] a second bite at the apple. Thus, though there was no section of the Restatement (Second) that specifically govern[ed] the case, the reality of the situation [was] that there[ was] a sufficient relationship between [the two parties] that they ought to be barred. Justice Ginsburg seized on Mr. Hallward-Driemeiers hypothetical to point out that Taylors case was inappositehere, there was no evidence of collusion between the two parties. Mr. Hallward-Driemeier agreed that Justice Ginsburgs facts were correct, but emphasized that the court of appeals did find that Taylor had brought the suit in order to vindicate the exact same interests that were involved in the prior suit.

The discussion that followed concerned the effects of stare decisis on FOIA litigation. Justice Stevens asked counsel why the defense of stare decisis wasnt adequate to solve the vexatious litigation around identical FOIA claims. Mr. Hallward-Driemeier responded that the text of FOIA allowed a number of different venues to hear the suit, which allowed individuals scattered throughout the country to maintain an identical lawsuit in diverse venues. Given the governments and Fairchilds burden of persuading the court in each case that a FOIA exemption is warranted, repeated litigation forced the two parties to travel around the country litigating the same case repeatedly. Such an outcome was unfair to the respondents, Mr. Hallward-Driemeier argued. Also, given the public-right nature of the FOIA interest, preclusion was particularly appropriate because the individual interests of plaintiffs were lower, and the almost infinite quantity of plaintiffs would compound the litigation problem indefinitely.

Mr. Hallward-Driemeier then went on to praise the virtue of the narrow rule advocated by the Government, despite Justice Scalias assertion that, for a thousand-headed monster of litigation . . . [your] solution is to cut off one eyebrow. Mr. Hallward-Driemeier pointed out that the goal was to still allow multiple individuals on entirely independent grounds to bring suit. The Governments narrow rule would merely bar the very few people whose relationship was based on relitigating the same claim. In a case such as this one, though there was no legal relationship, [i]t is the substance of the relationship that counts.

Catherine E. Stetson, counsel for Fairchild Corporation, opened by seizing upon the endless, vexing hypotheticals that the Justices had posed to the previous attorneys. Such hypotheticals showed that privity was a changing concept with no precise statutory or constitutional definition. But instead of the freewheeling, totality-of-the-circumstances test that Justice Scalia had earlier pressed, Ms. Stetson asserted that there were definite inquiries that must be made in a res judicata inquiry: first, an examination must be made into the relationship between the litigants; second, the court must look at how the parties conducted themselves during the suits. Turning to the latter inquiry, Ms. Stetson urged the court to acknowledge the lower courts factfinding that there was indeed a request from Herrick to Taylor to assist in repairing the F-45. Justice Souter interjected that an inference of factfinding is something that the Court, as a court of appellate jurisdiction, was not equipped to do. Ms. Stetson responded that the trial court held precisely that there was deliberate maneuvering between Herrick and Taylor. Justice Ginsburg responded that because the court of appeals failed to reach the same question, the relevant trial facts were not before the Court. Ms. Stetson went on to concede that the case was factually unique, but argued that it still fell well within the wheelhouse of privity cases that [the] Court is quite comfortable with.

Chief Justice Roberts pressed Ms. Stetson on whether the interests in an associational standing case were sufficiently aligned to bind individual members to a decision binding the organization. Ms. Stetson asserted that it was not sufficient to have similar interests. For preclusion to apply, the interests of the two parties had to be identical; that bar was met here, because one [case] was literally factually derivative of the other. Taylor had standing to bring the FOIA request, but that did not give him a free pass from a res judicata inquiry.

Ms. Stetson closed by noting that respondents were not advocating[,] nor is the government, a privity rule that [would] result in the widespread preclusion of FOIA plaintiffs who seek[] the same documents for independent reasons. But when a case presented a square privity issue, the case should be barred under normal res judicata principles.

Ms. Rosenbaums four-minute rebuttal began with a response to the cases brought up by Government counsel. Ms. Rosenbaum asserted that the exact[] . . . point was that the legal relationships defined in those cases gave rise to privity, and that those same relationships were missing in Taylors case.

Second, Ms. Rosenbaum argued, Congress set up a clear remedial structure in FOIA, involving multiple venues, that should not be second-guessed.

Third, Ms. Rosenbaum clarified that although the district court had found tactical maneuvering between Herrick and Taylor, the court of appeals specifically said that the district court had erred in concluding there had been an agreement. Ms. Rosenbaum acknowledged Chief Justice Roberts suggestion that the case could be remanded to the lower court to answer the question of whether collusion had occurred. She closed by stating that privity should be based on [underlying] rationales that protect the litigants right to be heard and ensure that they do have their day in court.