D.C. Circuit Holds Virtual Representation Substitutes for Privity; Res Judicata Bars Suit to Obtain FAA Papers

Per Taylor v. Blakey, --- F.3d ----, 2007 WL 1791094 (D.C. Cir. June 22, 2007) (NO. 05-5279):

Courts now generally hold a nonparty's claim precluded by a prior suit based upon a particular form of privity known as "virtual representation." The idea is that some cases of successive litigation involve as a litigant "a nonparty [to the original action] whose interests were adequately represented by a party to the original action." Tyus, 93 F.3d at 454; cf. Martin v. Wilks, 490 U.S. 755, 762 n. 2, 109 S.Ct. 2180, 104 L.Ed.2d 835 (1989) ("[I]n certain limited circumstances, a person, although not a party, has his interests adequately represented by someone with the same interests who is a party"). In those cases the party to the prior litigation is treated as the proxy of the nonparty, with the result that the nonparty is barred from raising the same claim. At this level of generality, the doctrine is not controversial. See Tice v. Am. Airlines, Inc. 162 F.3d 966, 971 (7th Cir.1998); see also Gonzalez v. Banco Cent. Corp., 27 F.3d 751, 758 & n. 5 (1st Cir.1994).

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An appropriate test for virtual representation must consider and balance competing interests in due process and efficiency. Too readily to find virtual representation risks infringing upon the nonparty's right to due process of law and departs from our "deep-rooted historic tradition that everyone should have his own day in court." Richards, 517 U.S. at 798. To find virtual representation under only very narrow circumstances, on the other hand, would expose defendants to the burden of relitigation, raise the possibility of inconsistent results, and compromise the public interest in judicial economy. See Parklane, 439 U.S. at 326; Hardison v. Alexander, 655 F.2d 1281, 1288 (D.C.Cir.1981). We believe these competing concerns can best be addressed by considering five factors in a test similar to that used by the Ninth Circuit in Irwin v. Mascott, 370 F.3d 924, 930 (2004). Like the Ninth Circuit, we believe identity of interests and adequate representation are necessary conditions. We do not, however, believe they are sufficient-a point to which our sister circuit did not speak. We therefore require in addition a showing of at least one of the other factors the Ninth Circuit identified as supporting virtual representation: a close relationship between the present party and his putative representative, or substantial participation by the present party in the first case, or tactical maneuvering on the part of the present party to avoid preclusion by the prior judgment. As this approach clarifies, there can be no virtual representation absent an affirmative link between the later litigant and either the prior party or the prior case. Decisions finding virtual representation have often applied the factors we adopt today, see 18A WRIGHT ET AL., supra, § 4457 at 521-28 (collecting cases), and the parties generally agree they are appropriate factors to consider.

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An appropriate test for virtual representation must consider and balance competing interests in due process and efficiency. Too readily to find virtual representation risks infringing upon the nonparty's right to due process of law and departs from our "deep-rooted historic tradition that everyone should have his own day in court." Richards, 517 U.S. at 798. To find virtual representation under only very narrow circumstances, on the other hand, would expose defendants to the burden of relitigation, raise the possibility of inconsistent results, and compromise the public interest in judicial economy. See Parklane, 439 U.S. at 326; Hardison v. Alexander, 655 F.2d 1281, 1288 (D.C.Cir.1981). We believe these competing concerns can best be addressed by considering five factors in a test similar to that used by the Ninth Circuit in Irwin v. Mascott, 370 F.3d 924, 930 (2004). Like the Ninth Circuit, we believe identity of interests and adequate representation are necessary conditions. We do not, however, believe they are sufficient-a point to which our sister circuit did not speak. We therefore require in addition a showing of at least one of the other factors the Ninth Circuit identified as supporting virtual representation: a close relationship between the present party and his putative representative, or substantial participation by the present party in the first case, or tactical maneuvering on the part of the present party to avoid preclusion by the prior judgment. As this approach clarifies, there can be no virtual representation absent an affirmative link between the later litigant and either the prior party or the prior case. Decisions finding virtual representation have often applied the factors we adopt today, see 18A WRIGHT ET AL., supra, § 4457 at 521-28 (collecting cases), and the parties generally agree they are appropriate factors to consider.

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In this case the record before the district court at summary judgment indicated Herrick and Taylor had identical interests in obtaining the F-45 documents, which interests were adequately represented in Herrick's litigation; and they were close associates. The district court therefore did not err in holding the two were in privity.

Taylor has raised the same claim as had Herrick, and the Tenth Circuit's decision in Herrick's case was clearly a final judgment on the merits. The requirements for res judicata are therefore satisfied, and the decision of the district court is accordingly affirmed.