Master The Supreme Court rejected the D.C. Circuit’s broad virtual representation doctrine and sharply limited nonparty preclusion to six established exceptions. with this comprehensive case brief.
Taylor v. Sturgell is the Supreme Court’s definitive modern statement on the limits of nonparty preclusion—often discussed under the rubric of "virtual representation." The case squarely confronts the due process presumption that every person is entitled to a day in court and clarifies when, if ever, a judgment can bind someone who did not participate in the earlier litigation. By rejecting an amorphous, multi-factor version of "virtual representation," the Court restored discipline to preclusion doctrine and aligned federal common law with the Restatement (Second) of Judgments and longstanding due process principles.
For law students, Taylor is essential to understanding the boundary between fairness to nonparties and the judicial system’s interest in finality. It catalogues the six recognized exceptions where nonparty preclusion is permissible and warns against collapsing preclusion into a free-ranging equity inquiry based on perceived closeness of relationships or litigation tactics. The decision also matters across subject areas—including FOIA—by confirming that statutory rights allowing "any person" to sue cannot be nullified by expansive, judge-made preclusion rules.
Taylor v. Sturgell, 553 U.S. 880 (2008)
Greg Herrick, an aircraft enthusiast, filed a FOIA request with the FAA seeking plans and engineering drawings for a vintage Fairchild aircraft. The corporate successor to the original manufacturer objected, and the FAA withheld the documents under FOIA Exemption 4 (protecting trade secrets and confidential commercial information). Herrick sued and lost; the Tenth Circuit affirmed the denial in Herrick v. Garvey. After Herrick’s defeat, Brent Taylor—Herrick’s friend and fellow aircraft enthusiast—filed his own FOIA request to the FAA seeking the same records. When the FAA again refused, Taylor sued in the U.S. District Court for the District of Columbia. The FAA (and the submitter) argued that Taylor’s suit was precluded because he was in "virtual privity" with Herrick: they shared a close association and aligned interests, used similar FOIA requests, and allegedly coordinated strategy, including overlapping counsel and support. The district court accepted this argument and granted summary judgment on preclusion grounds; the D.C. Circuit affirmed, applying its multi-factor virtual representation doctrine (considering close relationships, adequate representation, tactical maneuvering, and notice). The Supreme Court granted certiorari to determine whether such nonparty preclusion comported with federal preclusion law and due process.
May a nonparty to prior litigation be precluded from relitigating claims under a broad, multi-factor virtual representation theory based on close relationships, shared interests, or litigation coordination, absent one of the established exceptions to the rule against nonparty preclusion?
As a matter of federal common law and due process, a person who was not a party to a suit is generally not bound by the judgment. Nonparty preclusion is permitted only within six established categories: (1) the nonparty agreed to be bound by the prior judgment; (2) pre-existing substantive legal relationships between the party and the nonparty (e.g., preceding and succeeding owners of property, bailee–bailor, assignor–assignee); (3) the nonparty was adequately represented in the prior litigation by someone with the same interests and proper procedural safeguards (e.g., class actions under Rule 23, suits by trustees, guardians, or other fiduciaries); (4) the nonparty assumed control over the prior litigation; (5) the nonparty is acting as a proxy or agent for a party bound by the prior judgment (a party may not relitigate through a proxy); and (6) a special statutory scheme expressly forecloses successive litigation by nonparties, consistent with due process (e.g., bankruptcy, probate). Mere close relationships, aligned interests, or strategic coordination do not alone establish nonparty preclusion.
No. The Supreme Court rejected the D.C. Circuit’s broad virtual representation doctrine and held that Taylor could not be precluded merely because of a close relationship, aligned interests, shared counsel, or tactical coordination with Herrick. Nonparty preclusion must fit within one of the recognized exceptions, which the lower courts had not properly applied. The judgment was vacated and remanded.
Justice Ginsburg, writing for a unanimous Court, reaffirmed the bedrock due process principle that one is not bound by a judgment in a litigation to which he or she was not a party, citing cases like Hansberry v. Lee and aligning federal common law with the Restatement (Second) of Judgments. The Court criticized the D.C. Circuit’s virtual representation doctrine as an amorphous, multi-factor balancing test that would allow judges to bind nonparties based on subjective assessments of relationship closeness, alleged tactical maneuvering, and supposed adequacy of representation—without the procedural safeguards that due process demands. This approach, the Court warned, risks extinguishing statutory rights for persons who never had their own day in court and invites collateral litigation over the preclusion factors themselves. Instead, the Court catalogued six narrow, historically grounded exceptions permitting nonparty preclusion. These exceptions rest on consent, substantive legal relationships, formal representative litigation with procedural protections, control of prior litigation, genuine agency or proxy relationships, or explicit statutory regimes that provide adequate process. The Court emphasized that "adequate representation" requires structural safeguards (notice, representation of the same interests, and, typically, representation by someone understood to act in a representative capacity), not merely that another litigant previously pursued the same objective. The Court also observed that FOIA confers a right on "any person" to seek de novo judicial review, cautioning against judge-made preclusion rules that would effectively narrow that grant. Applying these principles, the Court held that Taylor’s suit could not be barred under a free-floating virtual representation theory. While the record suggested Taylor and Herrick were associates with aligned aims, those facts alone did not establish any of the six exceptions. The Court remanded for consideration of whether any recognized exception—such as control over the prior litigation or an agency/proxy relationship—could be proven on the specific facts, but it rejected the D.C. Circuit’s doctrinal framework as inconsistent with due process and federal preclusion law.
Taylor v. Sturgell sharply confines nonparty preclusion and rejects an expansive virtual representation doctrine. It provides a clear, six-category framework that students should memorize for exams and practice: consent; substantive legal relationships; adequate representation with safeguards; control; proxy/agency; and special statutory schemes. The case underscores that adequate representation is a procedural concept, not a hindsight assessment of similarity of interests. It also signals that statutory entitlements (like FOIA’s right for "any person" to sue) should not be undermined by elastic, equitable preclusion theories. Beyond FOIA, Taylor influences class actions, representative suits, mass torts, and complex litigation, where questions of privity and nonparty binding effects regularly arise.
Virtual representation posited that a nonparty could be bound by a prior judgment if a court found a sufficiently close relationship, aligned interests, and adequate pursuit of the same objectives—sometimes considering notice, shared counsel, or suspected tactical maneuvering. Taylor rejected this open-ended approach as incompatible with due process and federal common law, replacing it with six specific, historically grounded exceptions to nonparty preclusion.
No. The Supreme Court held that such factors do not, by themselves, justify nonparty preclusion. Without fitting into a recognized exception—such as control of the prior suit, a formal representative capacity with due process protections, or a genuine agency/proxy relationship—a nonparty cannot be bound simply because he is closely aligned with or assisted a prior litigant.
They are: (1) consent to be bound; (2) pre-existing substantive legal relationships (e.g., assignor–assignee, bailor–bailee, successive property owners); (3) adequate representation with procedural safeguards (e.g., properly conducted class actions, suits by trustees or guardians); (4) assumption of control over prior litigation; (5) proxy or agency situations where a bound party effectively relitigates through a nonparty; and (6) special statutory schemes that expressly bind nonparties consistent with due process (e.g., bankruptcy or probate).
Taylor reinforces that FOIA’s "any person" right to sue cannot be curtailed by broad nonparty preclusion rules. While ordinary preclusion principles still apply and a nonparty may be bound under one of the six exceptions (e.g., if he controlled the prior suit), courts cannot bar a new FOIA plaintiff merely because he is closely associated with someone who previously litigated and lost a similar request.
Adequate representation demands structural due process protections: the representative must share the same interests, be understood to act in a representative capacity, and the proceedings must provide safeguards (such as notice and the opportunity to be heard) typical of class actions or fiduciary suits. Mere similarity of objectives or competent lawyering in a prior case does not make later nonparties bound.
Not definitively. The Court vacated and remanded, holding that the D.C. Circuit’s virtual representation analysis was legally erroneous. It instructed the lower courts to consider, on a proper record, whether any recognized exception—such as control or agency/proxy—applied. The key holding is the categorical rejection of the broad virtual representation doctrine.
Taylor v. Sturgell restores clarity and due process discipline to preclusion law by rejecting a flexible, multi-factor virtual representation approach. It reaffirms the fundamental presumption that one is not bound by a judgment in a case to which he was not a party and confines nonparty preclusion to six discrete, historically recognized categories.
For law students, Taylor is a must-know case: it sets the template for analyzing privity and nonparty binding effects, provides a memorably organized rule statement, and cautions courts against substituting broad equitable discretion for the procedural safeguards that legitimate binding judgment on those who never had their own day in court.