Wednesday, April 16, 2008
The Supreme Court heard oral argument today in Taylor v. Sturgell, a fascinating case involving nonparty preclusion. Having read the transcript of the oral argument, I'd be surprised if the Court affirmed, but I would not be surprised if the Court remanded to give the lower courts an opportunity to consider the issue of collusion.
Here's the case in a nutshell: Greg Herrick filed a FOIA request for information about an antique aircraft. When the request was rejected, he filed suit in the District of Wyoming, and lost. Subsequently, Brent Taylor made a FOIA request for the same info. When his request was rejected, he sued in the District of Columbia. The district court and the D.C. Circuit held that Taylor was claim precluded. Noting that Taylor was the director of an antique aircraft association of which Herrick was a member, and that they were represented by the same counsel, the D.C. Circuit held that Taylor was "virtually represented" by Herrick in the first suit.
Taylor argued that, with limited exceptions, a nonparty is not bound by a judgment. The government and manufacturer argued that they should not have to relitigate the FOIA issue, given the close association between Herrick and Taylor. Along with other proceduralists, I co-wrote an amicus brief supporting Taylor's position, emphasizing not only the integrity of the law of judgments, but also the law of joinder and representative litigation. The law offers numerous ways to bind multiple persons to a judgment, but such joinder or representation must be accomplished ex ante and with appropriate procedural protections, not ex post through the backdoor of preclusion.
At today's oral argument, Justice Ginsburg's and Justice Scalia's questions repeatedly emphasized the individual nature of the FOIA right and the fact that Herrick's case was not collective litigation. Justice Scalia brought up the apt comparison to class actions, although he made the error of emphasizing that individuals may withdraw from a class action (a point that should carry little or no weight in this case, because had the FOIA litigation been a class action, it would have been a Rule 23(b)(2) non-opt-out class action). But Justice Ginsburg saved the day by pointing out that under Rule 23 any settlement must be approved by the judge.
When counsel for the government argued that preclusion is necessary in order to avoid vexatious FOIA litigation, Justice Scalia said, "Counsel, you have described for us a thousand-headed monster of litigation, and your proposal for a solution is to cut off one eyebrow. ... It seems to me that, you know, in order to cut off an eyebrow, I'm not willing to make a whole lot of incursion upon our traditional rules of who's bound by a lawsuit."
Mass tort litigation involves numerous plaintiffs with similar interests, often represented by the same counsel or lawyers working closely together. A broad approach to nonparty preclusion could significantly affect the dynamics of such litigation. Respondents' counsel in Taylor, however, made it clear that they were not seeking a broad rewriting of the rules of preclusion. Justice Ginsburg got no serious resistance when she said, "[L]et's say you have a whole busload of people who get injured in the same accident. Plaintiff one sues and loses. Two sues and loses. Three is not precluded. Four is not precluded."
Some of the Justices seemed concerned that there may have been collusion between Herrick and Taylor, at least in the sense that Taylor may have been pursuing the FOIA case on behalf of Herrick after Herrick lost on his first try. The Justices were clearly unwilling to reach a conclusion unsupported by the record (Justice Souter: "In effect, you're asking us to infer a finding of fact, and we're not the trial court."). But they were warmer to the possibility of remand. Justice Ginsburg suggested, "It could be remanded. It could be remanded with instructions that the collusion question is still open." When Chief Justice Roberts asked petitioner's counsel on rebuttal whether the Court should remand for consideration of whether there was an agreement, counsel responded, "Yes. The court could remand it and then the district court would have the discretion to allow the case to go forward as it saw fit." I have to imagine that such a remand would be an appealing option to a number of the Justices, although if so, I hope it comes with a clear statement reaffirming the principle that nonparties are not bound by judgments except in very narrow circumstances.