Interagency Privity and Claim Preclusion

Abstract

Federal administrative agencies play an important role in national policy,' directing most of the day-to-day activities of the federal government. The agencies pursue their separate tasks with a good deal of autonomy, and yet the lines dividing their spheres of activity are often unclear. When more than one agency pursues similar goals through adjudication, the result may be duplicative litigation. The doctrine of preclusion is the procedural device generally invoked to prevent such duplication. Preclusion can take two forms: issue preclusion, which prevents a party from relitigating issues it has already fully litigated, and claim preclusion, which prevents a party from relitigating a claim when it participated in a prior adjudication of these claims or when it was in privity with a party to that litigation. It is this latter form of preclusion that presents a special problem for government agencies. In a bureaucracy as vast as the federal government, strict application of claim preclusion could prevent agencies from pursuing important policy goals. For example, the Occupational Safety and Health Administration (OSHA) and the Environmental Protection Agency (EPA) both may regulate the discharge of toxic chemicals from a particular factory; both may need to go to court to enforce their regulations. But if for some reason OSHA completes its litigation against the factory before the EPA, subsequent litigation by the EPA might be precluded. In cases where agencies have such overlapping responsibilities and where one agency's litigation could preclude legal action by the other, courts have been unable to develop a workable test to balance the agency's interest in litigating its claim against the interest of the judicial system and parties in preventing duplicative suits.