The Last Rivet
August 11, 2008
Alan D. Reitzfeld- New York
We will close this issue of our Aviation Newsletter with an eclectic mix of information, which we hope will be of interest − even if for nothing more than potential use as a conversation starter.
Interesting Advisory Circular
AC 121-36 (Dec. 31. 2002) entitled: “Management of Passengers who may be Sensitive to Allergens,” available here
56CAD006AC95D. AC 121-36 gives guidance on procedures for handling passengers who are allergen sensitive. It is of interest, for example, to Part 121, 125 and 135 certificate holders, aviation medical equipment/training providers, passengers who may be allergen sensitive and FAA safety inspectors.
United States Supreme Court − Recent Decisions
Those who like to keep up with the U.S. Supreme Court’s pronouncements on aviation-related subjects − even if the aviation connection is only tangential − may be interested in reading two decisions issued in June:
Richlin Security Service Co. v. Chertoff, Secretary of Homeland Security, No. 06-1717 (S. Ct. June 2, 2008), available here.
Taylor v. Sturgell, Acting Administrator, Federal Aviation Administration, No. 07-371 (S. Ct. June 12, 2008) available here.
Richlin
This case arose out of a contract under which Richlin Security was engaged by the former Immigration and Naturalization Service (whose function is now part of the Department of Homeland Security) to provide guard services for detainees at the Los Angeles International Airport. The aviation connection, however, ends there as the issue before the Court pertained to whether prevailing market rates (which the Court held applicable) or actual costs was the measure by which a prevailing party could recover costs for paralegal services under the Equal Access to Justice Act, 5 U.S.C.§504(a)(1) and 28 U.S.C. §2412(d)(1)(A). Nevertheless, the case may be of interest to those entering into contracts with the U.S. government.
Taylor
The factual background of Taylor actually begins with a Freedom of Information Act, 5 U.S.C. § 552 (FOIA) request, and subsequent lawsuit, brought by Mr. Herrick − someone who was not a named party in Taylor (the factual discussion that follows is a summary culled together from a number of the decisions mentioned below). Herrick was a member of the Antique Aircraft Association and owner of a 1936 antique F-45 aircraft manufactured by Fairchild Engine and Airplane Corporation, a predecessor of the Fairchild Corporation. He filed a FOIA request seeking plans and specifications submitted by the manufacturer in 1935 to the Civil Aeronautics Agency (the predecessor of the FAA) to receive an Approved Type Certificate; Herrick indicated that he was seeking the information for the purpose of restoring his F-45 aircraft. The FAA responded that it was unable to release the materials because the materials were exempt from disclosure as a trade secret under FOIA Exemption 4, 5 U.S.C. § 552(b)(4). Herrick filed an administrative appeal. The FAA responded that it had conferred with Fairchild, which refused to grant permission to produce the documents, and therefore the trade secret exemption continued to apply.
Relying on a 1955 letter from Fairchild’s predecessor allowing the government to loan data in its files to the public for use in repairs or replacement parts, Herrick filed a court challenge to the FAA’s denial of his FOIA request. A District Court in Wyoming granted summary judgment to the FAA, reasoning that the 1955 letter did not deprive the documents of trade secret status because they had in fact never been released. Further, the Court stated that, even if the letter waived trade-secret protection, Fairchild’s refusal to grant the FAA permission to produce the documents reversed the waiver. The Tenth Circuit Court of Appeals affirmed on the basis that Fairchild’s objection to FOIA production restored the trade secret status of the documents. Herrick v. Garvey, 298 F.3d 1184 (10th Cir. 2002). The Tenth Circuit viewed the 1955 letter as depriving the F-45 documents of “secret” status. However, Herrick’s appeal did not challenge two suppositions underlying the District Court’s decision, specifically that trade-secret status could be restored to documents that lost that status and that Fairchild had regained that status for the documents even though it claimed the status only after the FOIA request was made. The Tenth Circuit therefore assumed without deciding that: (1) the permission granted in the 1955 letter could be revoked and the trade secret status of the documents could be restored; and (2) Fairchild timely revoked the grant of permission.
Shortly after the Tenth Circuit’s decision regarding Mr. Herrick’s case, Mr. Taylor filed a FOIA request seeking the very same F-45 documents that Herrick had sought. Taylor was Herrick’s friend and the executive director of the Antique Aircraft Association of which Herrick was a member. The FAA’s Production and Airworthiness Division did not respond to Taylor’s FOIA request. Represented by the same lawyer who represented Herrick in his case, Taylor appealed the constructive denial of his FOIA request to the FAA’s FOIA program manager; Taylor noted the Herrick decision and argued that the trade secret status of the F-45 documents had long been abandoned and could not be restored. As with Herrick’s FOIA request, the FAA withheld the requested materials under FOIA Exemption 4.
Taylor (still represented by the same lawyer who represented Herrick) sought review in the D.C. District Court of the FAA’s denial of his FOIA request. In addition to arguing that the 1995 letter had waived the documents’ trade secret status, Taylor sought to argue the two issues that the Tenth Circuit found Herrick failed to raise on appeal. Fairchild intervened in Taylor’s case (it was not a party to Herrick’s suit). Both Fairchild and the FAA moved for summary judgment, arguing, among other things, that the doctrine of res judicata precluded Taylor from bringing his claim because he had been “virtually represented” by Herrick in the other litigation. Taylor opposed the motion and alleged that he was seeking the information “for the public and in the interest of the preservation of antique aircraft heritage.” He disputed an earlier statement made by his counsel, in a memorandum of law on a discovery motion, that Herrick asked Taylor to assist with the repair of the F-45. The District Court held that Herrick had been Taylor’s virtual representative and dismissed Taylor’s case as barred by res judicata. The D.C. Circuit Court of Appeals affirmed the District Court’s decision. Taylor v. Blakey, Administrator, Federal Aviation Administration, 490 F.3d 965 (D.C. Cir. 2007).
The issue addressed by the U.S. Supreme Court was whether there is a “virtual representation” exception to the general rule that nonparties are not precluded from litigation by judgments entered in cases involving others. The Court disapproved the doctrine of preclusion by “virtual representation” and held that the judgment against Herrick did not bar Taylor from his suit; the D.C. Circuit Court of Appeals judgment was therefore vacated. The Supreme Court noted that the “preclusive effect of a federal-court judgment is determined by federal common law” and reviewed the six well-established grounds for determining whether non-party preclusion is appropriate. Only one of those grounds was found by the Supreme Court to be potentially applicable: “preclusion because a nonparty to an earlier litigation has brought suit as a representative or agent of a party who is bound by the prior adjudication.” The D.C. Circuit Court of Appeals, while addressing a similar issue, did not treat the issue before it as one of agency and had declined to reach any definitive conclusions because of factual ambiguities. Accordingly, the Supreme Court remanded to the lower courts the issue of whether Taylor, in his FOIA action, was acting as Herrick’s agent.
The Taylor decision should be of interest to those involved with FOIA requests and claim preclusion issues, as well as, of course, F-45 aircraft enthusiasts.
For more information, contact:
Alan D. Reitzfeld
212.513.3400
alan.reitzfeld@hklaw.com
toll free: 1.888.688.8500
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