Ninth Circuit Consults Restatement in Claim Preclusion Case

The U.S. Court of Appeals for the Ninth Circuit reversed an order dismissing disability discrimination and retaliation claims on the basis of issue preclusion. In its opinion, the Court consulted § 26(1)(b) of the Restatement of the Law Second, Judgments in concluding that the claims also were not barred by claim preclusion.

The case before the Court, Garity v. APWU, dealt with the second of two parallel complaints filed by a pro se claimant; although both district court judges initially determined that the complaints should proceed as independent actions, the lower court dismissed the second complaint on issue-preclusion grounds following the dismissal of the first complaint on the merits. The Court reversed, finding that the claims were not barred by either issue preclusion or claim preclusion, noting that the Restatement identifies an exception to the application of the claim-preclusion doctrine when a court “has expressly reserved the plaintiff’s right to maintain the second action.”

In applying the Restatement’s exception, the Court held that “[t]he ‘full and fair opportunity to litigate’ requirement operates as a safety valve to give courts some leeway in the application of the claim preclusion doctrine. That leeway is warranted here: Garity should not be faulted for relying on the decisions of two district court judges mandating that her complaints be kept separate. Garity is not attempting to take a second bite at her first apple; she is requesting a first bite at her second apple—an apple two district court judges told her to keep in a separate basket.”

Read the opinion here.