FILED 

 U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 September 13, 2004 

 THOMAS K. KAHN 

 CLERK

Honorable Adrian G. Duplantier, United States District Judge for the Eastern District of *

Louisiana, sitting by designation.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 03-10719

________________________

D. C. Docket No. 00-02762-CV-AR-S

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff-Appellant,

versus

PEMCO AEROPLEX, INC.,

Defendant-Appellee.

________________________

Appeal from the United States District Court

for the Northern District of Alabama

_________________________

(September 13, 2004)

Before MARCUS and WILSON, Circuit Judges, and DUPLANTIER , District Judge. *

MARCUS, Circuit Judge:
2

At issue today is whether the plaintiff, Equal Employment Opportunity

Commission (“EEOC”), may proceed with a Title VII enforcement action charging

the defendant Pemco Aeroplex, Inc. (“Pemco”) with companywide racial

harassment, notwithstanding an adverse judgment rendered in a separate action

brought by a number of individual plaintiffs who alleged racial harassment by the

same defendant. The district court entered summary judgment for the defendant

holding that the EEOC was bound by the prior judgment even though the

Commission’s suit covers employees who were not part of the earlier private suit

and notwithstanding that the EEOC was twice denied the opportunity to

consolidate its case with the private suit. Because we conclude that there was no

privity between the EEOC and the private plaintiffs in the prior action, the district

court erred in applying the doctrines of res judicata and collateral estoppel. 

Accordingly, we reverse and remand for further proceedings consistent with this

opinion.

I

The facts and procedural history of this case are straightforward. On

December 9, 1999, thirty-six African-American employees of Pemco, a military

airplane repair and maintenance facility, filed suit in the Northern District of
3

Alabama against their employer, claiming that Pemco violated 42 U.S.C. § 1981

by subjecting them to racial harassment and other forms of race discrimination. 

See Thomas v. Pemco Aeroplex, No. CV-99-AR-3280-S (N.D. Ala.). The case

was initially brought as a class action, but the plaintiffs withdrew their class claim

after Pemco opposed certification, and prosecuted the case as thirty-six individual

plaintiffs consolidated in one action.

At the same time, the EEOC was investigating multiple charges of

discrimination at Pemco, having uncovered possible evidence of nooses, racially

inflammatory graffiti, racial slurs by coworkers and supervisors, and other

disconcerting incidents of race-related conduct at Pemco’s Birmingham facility

dating back at least to the late 1980s. In September 2000, the EEOC brought its

own suit (the instant case) against Pemco under Title VII of the Civil Rights Act,

42 U.S.C. § 2000e, alleging that Pemco subjected its 200 or more black employees

to a racially hostile work environment. The EEOC sought injunctive relief and

monetary compensation for all of the company’s 200 or more black employees. 

This case was assigned to the same district judge who was hearing the

Thomas case.

In October 2000, the EEOC moved to consolidate this suit with the private

action (the Thomas case), noting that the two cases involved the same witnesses
By this point, several of the original plaintiffs’ claims had been dismissed on procedural 1

grounds.

4

and issues, and raised common issues of law and fact. Pemco vigorously opposed

the motion, arguing that the suits were substantially different and that

consolidation would cause the company extreme prejudice. Specifically, Pemco

argued that the EEOC’s suit involved only one substantive claim -- a hostile work

environment claim covered by Title VII -- while the Thomas suit involved dozens

of individual plaintiffs, each with his own claims. The district court denied,

without explanation, the request to consolidate the cases for trial, but granted the

EEOC’s application that discovery undertaken in either case could be used to the

extent relevant in the other case.

In February 2002, after discovery in the private suit was completed, the

EEOC again moved to consolidate the cases for trial, and offered to forgo further

discovery in its own case for the chance to try the cases together. Pemco again

opposed the motion, contrasting the EEOC’s broad suit alleging class-wide

discrimination with the thirty-one private plaintiffs’ individual claims. Indeed,

1

Pemco argued that much of the evidence of class-wide discrimination pertinent to

the EEOC’s suit would be not only irrelevant but also prejudicial to the individual
According to the district court’s order, the EEOC’s attorney sat, “with some frequency,

2

in the audience as an alert and interested observer.” EEOC v. Pemco Aeroplex, Inc., No. 00-

AR-2762-S, slip. op. at 3.

5

claims. Again, the district court denied the consolidation motion without explanation.

During discovery, the EEOC had attended most of the depositions of the

witnesses. The EEOC’s attorneys met or conferenced with counsel for the

individual plaintiffs on many occasions prior to trial. In April 2002, nine of the

Thomas plaintiffs, including the lead plaintiff, settled with Pemco. The remaining

twenty-two plaintiffs -- who had worked in various parts of Pemco’s facility --

went to trial before a jury in June. During that trial, an EEOC attorney was present

in the courtroom about half the time according to the EEOC, and virtually each

day, according to Pemco. Notably, EEOC’s counsel did not sit at counsel table 2

during the trial, offer evidence, examine witnesses, or otherwise participate in the

trial of the Thomas case.

On June 26, the jury found that none of the twenty-two plaintiffs had been

subjected to a hostile work environment between December 9, 1997 and June 3,

2002. The jury was not asked to determine whether a racially hostile work

environment existed at Pemco during that time frame. Rather, the jury was asked

to decide whether each individual plaintiff had been subjected to a hostile work

environment on account of race. The jury answered “no” as to each plaintiff. The
6

court entered judgment against the twenty-two plaintiffs who had gone to trial in

the Thomas case, and against Pemco as to the plaintiffs who had accepted offers of

judgment.

Soon after, Pemco moved for summary judgment in the EEOC’s suit,

alleging that it was barred on the grounds of res judicata and collateral estoppel in

light of the adverse verdicts in the Thomas suit. Pemco claimed that the two suits

addressed the same question -- whether a racially hostile work environment

pervaded the work atmosphere at Pemco -- and that the jury verdict answered this

question in the negative. Pemco also argued that the EEOC was in privity with the

twenty-two plaintiffs -- and could therefore be bound by the verdict against them -

- essentially because EEOC attorneys attended the trial, participated in joint

discovery, and met with plaintiffs’ counsel on numerous occasions. The district

court granted Pemco’s motion, finding that the issues and the evidence in the

EEOC’s suit were “the same” as those in the Thomas case. See EEOC v. Pemco

Aeroplex, Inc., No. 00-AR-2762-S (N.D. Ala. Dec. 13, 2002). Without

unambiguously finding privity between the EEOC and the private plaintiffs, the

district court observed that the EEOC had the opportunity to participate in

discovery in Thomas, and that EEOC counsel sat in on the Thomas trial as an

“alert and interested observer.” Slip op. at 3. The EEOC appealed.
7

II

The threshold issue in this case is whether the EEOC was in privity with the

twenty-two private plaintiffs in the Thomas action. If they were not, then plainly

the EEOC cannot be bound by the judgment in that case no matter how identical

the claims or similar the evidence may have been. Simply put, before the

doctrines of either res judicata or collateral estoppel may be asserted against a

party, it must be established that the party in the second action was either a party

in the previous action or a privy of the party in that action. This principle is

particularly important where the party in the second action is a governmental

agency reposed with independent statutory power to enforce the law and having

independent interests not shared by a private party.

In the case before us, we apply federal law, because “federal preclusion

principles apply to prior federal decisions, whether previously decided in diversity

or federal question jurisdiction.” CSX Transp., Inc. v. Brotherhood of Maint. of

Way Employees, 327 F.3d 1309, 1316 (11th Cir. 2003). We have held that res

judicata can be applied only if all of four factors are shown: “(1) the prior decision

must have been rendered by a court of competent jurisdiction; (2) there must have

been a final judgment on the merits; (3) both cases must involve the same parties

or their privies; and (4) both cases must involve the same causes of action.” In re
8

Piper Aircraft Corp., 244 F.3d 1289, 1296 (11th Cir. 2001) (citing Israel Discount

Bank Ltd. v. Entin, 951 F.2d 311, 314 (11th Cir. 1992); In re Justice Oaks II, Ltd.,

898 F.2d 1544, 1550 (11th Cir. 1990)). Likewise, in this Circuit, collateral

estoppel can apply only “when the parties are the same (or in privity) [and] if the

party against whom the issue was decided had a full and fair opportunity to litigate

the issue in the earlier proceeding.” In re Southeast Banking Corp., 69 F.3d 1539,

1552 (11th Cir. 1995) (citing Allen v. McCurry, 449 U.S. 90, 95, 101 S. Ct. 411,

415, 66 L. Ed. 2d 308 (1980); In re St. Laurent, 991 F.2d 672, 675 (11th Cir.

1993)). If identity or privity of parties cannot be established, then there is no need

to examine the other factors in determining whether res judicata or collateral

estoppel applies. Thus, if there was no privity between the EEOC and the Thomas

plaintiffs, summary judgment was improvidently granted and the district court’s

order must be reversed.

We review a district court’s order granting summary judgment de novo. See

Madray v. Publix Supermarkets, Inc., 208 F.3d 1290, 1296 (11th Cir. 2000). A

motion for summary judgment should be granted when “the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P.
9

56(c). We also review de novo a district court’s determination of res judicata or

collateral estoppel. See Jang v. United Techs. Corp, 206 F.3d 1147, 1149 (11th

Cir. 2000). However, whether a party is in privity with another for preclusion

purposes is a question of fact that is reviewed for clear error. See Mesa Petroleum

Co. v. Coniglio, 787 F.2d 1484, 1489-90 (11th Cir. 1986) (citing Astron Indus.

Assocs., Inc. v. Chrysler Motors Corp., 405 F.2d 958 (5th Cir. 1968)).

This Circuit’s preclusion standards reflect the longstanding and deep-rooted

principle of American law that a party cannot be bound by a judgment in a prior

suit in which it was neither a party nor in privity with a party. See Martin v.

Wilks, 490 U.S. 755, 761-62, 109 S. Ct. 2180, 2184, 104 L. Ed. 2d 835 (1989);

Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 327 n.7, 99 S. Ct. 645, 649 n.7,

58 L. Ed. 2d 552 (1979); Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found., 402

U.S. 313, 328-329, 91 S. Ct. 1434, 1442-1443, 28 L. Ed. 2d 788 (1971); Zenith

Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 110, 89 S. Ct. 1562, 1569,

23 L. Ed. 2d 129 (1969); Hansberry v. Lee, 311 U.S. 32, 40, 61 S. Ct. 115, 117, 85

L. Ed. 22 (1940). As the Supreme Court has written, “[a] judgment or decree

among parties to a lawsuit resolves issues as among them, but it does not conclude

the rights of strangers to those proceedings.” Martin, 490 U.S. at 762, 109 S. Ct.

at 2184. “This rule is part of our ‘deep-rooted historic tradition that everyone
10

should have his own day in court.’” Richards v. Jefferson County, Ala., 517 U.S.

793, 798, 116 S. Ct. 1761, 1766, 135 L. Ed. 2d 76 (1996) (quoting 18 C. Wright et

al., Federal Practice and Procedure § 4449, at 417 (1981)). Pemco does not, and

cannot, deny that the EEOC was not a party in the Thomas action. Therefore, the

EEOC can only be bound by the result in that case if it was in privity with the

plaintiffs in that case.

“Privity” is a flexible legal term, comprising several different types of

relationships and generally applying when a person, although not a party, has his

interests adequately represented by someone with the same interests who is a

party. Hansberry, 311 U.S. at 41-43, 61 S. Ct. at 117-19. Adequate representation

can arise in a number of circumstances. For example, “a judgment that is binding

on a guardian or trustee may also bind the ward or the beneficiaries of a trust.” 

Richards, 517 U.S. at 798, 116 S. Ct. at 1766. The judgment in a class action may

be binding on members of that class. Hansberry, 311 U.S. at 41-42, 61 S. Ct. at

117-118. Or, “where a special remedial scheme exists expressly foreclosing

successive litigation by nonlitigants, as for example in bankruptcy or probate,

legal proceedings may terminate preexisting rights if the scheme is otherwise

consistent with due process.” Martin, 490 U.S. at 762 n.2, 109 S. Ct. at 2184 n.2

(citing NLRB v. Bildisco & Bildisco, 465 U.S. 513, 529-530 n.10, 104 S. Ct.
11

1188, 1198 n.10, 79 L. Ed. 2d 482 (1984); Tulsa Prof’l Collection Servs., Inc. v.

Pope, 485 U.S. 478, 108 S. Ct. 1340, 99 L. Ed. 2d 565 (1988)). 

Obviously, none of these forms of privity are present in this case. As we see

it, then, only two of the recognized types of privity are even remotely plausible

here: the theory of “virtual representation,” or “control” over the previous

litigation. Although the district court never employed either of these terms in its

order granting summary judgment, the relationship the district court and Pemco

describe between the EEOC and the Thomas plaintiffs more closely resembles

these two forms that privity may take. Other ways in which privity can be

demonstrated -- class representatives or trustee/beneficiary, for example -- are

obviously inapplicable. We therefore address the two types of privity that form

the core of Pemco’s argument. Our review of the record, however, suggests that

neither virtual representation nor control over the previous litigation can be found

in this case.

A. Virtual Representation

First, Pemco says that privity is present here because the Thomas plaintiffs’

interests were so similar to those of the EEOC that they acted as the EEOC’s

virtual representatives. “Virtual representation” is a term of art that we have
Technically, the Delta panel was not entirely clear whether this was its specific definition 3

of “virtual representation,” or whether it was denoting characteristics that applied for a number of

concepts of preclusion, of which virtual representation was only one. See Delta, 708 F.2d at 587

(“Under res judicata doctrines such as ‘virtual representation,’ a litigant may be precluded from

litigating an issue based on a prior lawsuit in which, although he was not a party, his interests

were represented by a party. This principle applies, however, only when the respective interests

are closely aligned and the party to the prior litigation adequately represented those interests.” 

(citation omitted)). However, a later decision in this Circuit quoted this language as specifically

defining virtual representation. Jaffree v. Wallace, 837 F.2d 1461, 1467 (11th Cir. 1988).

The Eleventh Circuit has adopted as precedent the decisions of the former Fifth Circuit 4

rendered prior to October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.

1981) (en banc).

12

defined as applying “when the respective interests are closely aligned and the

party to the prior litigation adequately represented those interests.” Delta Air

Lines, Inc. v. McCoy Rests., Inc., 708 F.2d 582, 587 (11th Cir. 1983) (citing

Southwest Airlines Co. v. Texas Int’l Airlines, Inc., 546 F.2d 84, 100 (5th Cir.

1977)) (emphasis added). The doctrine of virtual representation provides in 3

essence that “a person may be bound by a judgment even though not a party if one

of the parties to the suit is so closely aligned with his interests as to be his virtual

representative.” Aerojet Gen. Corp. v. Askew, 511 F.2d 710, 717 (5th Cir. 1975).4

Whether a party is a virtual representative of another is a question of fact. Mesa

Petroleum, 787 F.2d at 1489-90(citing Astron Indus. Assocs.).

We have employed four factors in determining whether there is virtual

representation: whether there was “participation in the first litigation, apparent

consent to be bound, apparent tactical maneuvering, [and] close relationships
13

between the parties and nonparties.” Jaffree v. Wallace, 837 F.2d 1461, 1467

(11th Cir. 1988) (quoting 18 Wright & Miller, Federal Practice & Procedure §

4457, at 494-99) (alteration in original). All of these factors need not be found to

meet the virtual representation standard, nor is it necessarily enough that one of

them is found; rather, we examine them in concert to determine whether there is

virtual representation.

As for the first factor, the EEOC “participated” in the first litigation only in

the sense that it conducted discovery jointly, met with private plaintiffs’ counsel,

and attended (but did not and could not participate in) part of the trial. 

Specifically, the EEOC took part in discovery after the district court allowed joint

discovery in both cases. EEOC representatives also participated in mediation with

the plaintiffs when Pemco sought an overall resolution to both actions and refused

to mediate in Thomas unless EEOC also agreed to participate in the mediation. 

The parties disagree over how much time an EEOC attorney spent sitting in the

courtroom during the Thomas trial and how often they conferred with the Thomas

plaintiffs’ counsel. But, most notably, the EEOC was not a party and there is no

indication that it took the lead in the litigation, was heard at all during the trial, or

served in anything other than an advisory capacity to the plaintiffs. The EEOC’s

representatives did not sit at counsel’s table, attend every day of the trial, examine
14

any witnesses, proffer any evidence, or exert any control over the plaintiffs’

decisions. Indeed, the EEOC had no power to decide which claims the plaintiffs

could assert, nor could it or did it decide how to argue the Thomas case, nor did it

have any authority to settle or refuse to settle that suit. Finally, the EEOC had no

authority to decide whether any appeal should be taken from the adverse

judgments in the Thomas case.

Overall, these factors do not warrant a finding of virtual representation. 

Indeed, this finding is altogether consonant with the result reached in South

Central Bell Tel. Co. v. Alabama, 526 U.S. 160, 119 S. Ct. 1180, 143 L. Ed. 2d

258 (1999), where the Supreme Court found that privity did not exist even when

the plaintiffs in the two cases shared the same lawyer. 526 U.S. at 168, 119 S. Ct.

at 1185; see also Sec’y of Labor v. Fitzsimmons, 805 F.2d 682, 691-94 (7th Cir.

1986) (finding that there was no privity even though the Secretary of Labor had

taken part in a joint discovery with the plaintiffs in the prior action; had intervened

to object to the settlement in the private action; and the private litigants had

statutorily been required to provide notice of their suit to the Secretary).

In the second place, the EEOC plainly did not “consent to be bound” by the

judgment in the litigation in which in was not allowed to be a party. There is no

indication anywhere in the record that the EEOC ever agreed to drop its case if the
15

private plaintiffs lost their case against Pemco, or, for that matter, if the individual

plaintiffs won.

The third factor is “tactical maneuvering,” which has been described as

“maneuvering to avoid preclusion.” 18A Wright & Miller, Federal Practice &

Procedure 2d § 4457, at 544-45 (2003). The EEOC did no such thing; indeed, it

tried repeatedly to get into the earlier litigation, a move which, if successful,

would obviously have barred it from asserting the same or similar claims later. In

fact, it has been suggested that for there to be a finding that tactical maneuvering

occurred, “it is not enough that a nonparty deliberately resisted inclusion in the

earlier litigation.” Id. at 545 (citing Bogenholm v. House, 388 N.W.2d 402, 407 &

n.5 (Minn. App. 1986)). So it would be truly anomalous to find tactical

maneuvering when a party vigorously sought but was prevented from being

included in the earlier litigation. Furthermore, “tactical maneuvering” by the

opposing party to create preclusion may be a powerful indicator that virtual

representation should not be found to exist. See id. (citing Chase Manhattan

Bank, N.A. v. Celotex Corp., 56 F.3d 343 (2d Cir. 1995)). Pemco arguably did

just that, by trying to keep the EEOC as a party out of the original Thomas

litigation and then pushing to preclude it from bringing its own suit.
16

The fourth factor, “close relationships between the parties and nonparties,”

has been described by a panel of the former Fifth Circuit as requiring “an express

or implied legal relationship in which parties to the first suit are accountable to

non-parties who file a subsequent suit raising identical issues.” Pollard v.

Cockrell, 578 F.2d 1002, 1008 (5th Cir. 1978). In that case, the Court listed

examples of such relationships as “estate beneficiaries bound by administrators,

presidents and sole stockholders by their companies, parent corporations by their

subsidiaries, and a trust beneficiary by the trustee.” Id. at 1008-09 (quoting

Southwest Airlines Co., 546 F.2d at 97). The Pollard Court’s list of “close

relationships” consists of legal relationships involving a significant degree of

accountability or control by one party over the other. Plainly, the relationship

between the EEOC and individual plaintiffs on whose behalf they act does not

have any of these traits. 

So of the four factors that could establish virtual representation, three are

clearly absent and one (participation in the original litigation) is only barely

present. Thus, not surprisingly, we conclude that the Thomas plaintiffs were not

the virtual representatives of the EEOC, a finding that is further supported by our

holding in Dills v. City of Marietta, Ga., 674 F.2d 1377 (11th Cir. 1982). In Dills,

a panel of this Court refused to back away from what it described as Pollard’s
17

basic holding that “the doctrine of virtual representation require[s] an express or

implied legal relationship in which parties to the first suit are accountable to

non-parties who file a suit raising identical issues.” Id. at 1379 (internal quotation

marks omitted) (emphasis added). Thus, if the party to the prior litigation was not

legally accountable to the party in the latter, then virtual representation cannot be

present, regardless of any other factor. Applying this standard, it is clear enough

that the EEOC and the original private plaintiffs had no such connection. The

private plaintiffs who sued Pemco were in no way legally accountable to the

EEOC, they were not under the EEOC’s control, and the EEOC had no power to

require them to do anything. In short, we think there is little question that the

Thomas plaintiffs were not virtual representatives of the EEOC.

Other cases relied upon by Pemco are plainly different. In urging the trial

court to find privity, Pemco cited the Eleventh Circuit’s decision in NAACP v.

Hunt, 891 F.2d 1555 (11th Cir. 1990). In Hunt, a panel of this Court found that a

challenge to the constitutionality of Alabama’s practice of flying the Confederate

flag on top of the state capitol was precluded by an adverse judgment in a similar

suit brought thirteen years earlier. The original plaintiff and the later plaintiffs

were both state legislators and members of the NAACP, and we found that the
18

interests of the original plaintiff were “so closely aligned to the NAACP’s interests

in the original suit that he was their virtual representative.” Id. at 1561.

There are several powerful differences between this case and Hunt,

however. First, Hunt applied Alabama’s law of preclusion rather than federal

preclusion law. Id. at 1560. And federal privity principles, as detailed above,

employ a discernibly higher standard than the Alabama law applied in Hunt. 

Moreover, the Supreme Court’s post-Hunt decisions in Richards and South

Central Bell both narrowed Alabama’s preclusion law, reversing Alabama

Supreme Court holdings that preclusion applied.

In addition, Hunt involved a general public law issue that affected the

plaintiffs’ private interests only indirectly, unlike the alleged racial harassment at

Pemco. The Supreme Court has explicitly distinguished between such generalized

public law challenges and more individualized cases, suggesting that there is less

preclusion protection for a plaintiff who “complain[s] about an alleged misuse of

public funds, or about other public action that has only an indirect impact on his

interests.” Richards, 517 U.S. at 803, 116 S. Ct. at 1768 (citations omitted). 

Indeed, the Supreme Court has suggested that in cases involving broad public

interest matters, “we may assume that the States have wide latitude to establish

procedures . . . to limit the number of judicial proceedings that may be
 Pemco’s argument that the EEOC’s interests were adequately represented by the private 5

litigants also relies on Petit v. City of Chicago, No. 90-C-4984, 1999 WL 66539 (N.D. Ill., Feb.

8, 1999), an unreported case in which a district court found that a suit challenging a city’s

sergeant qualifying exam as racially discriminatory was estopped because of a previous suit

bringing the same claim. Id. at *8. The court noted that there was privity because “[a]lthough

not all the plaintiffs were parties to [the previous case], 19 of the present plaintiffs were plaintiffs

in [that case], the same attorney represents the plaintiffs in both cases, and the prior history of

consolidated discovery means that the available evidence regarding past discrimination is the

same for both cases.” Id. at *5. This was purely dicta, however, because the plaintiffs had made

no privity argument and therefore waived that legal issue. Id. Moreover, the Thomas plaintiffs

used non-EEOC lawyers; the EEOC’s interests and legal responsibilities are wholly distinct from

those of the private plaintiffs; and there is no indication that any of the Petit plaintiffs had tried

and failed to join the earlier suit against the city, as the EEOC tried to consolidate its action with

the private action against Pemco.

19

entertained,” as opposed to suits in which individual interests are clearly and

directly implicated. Id.5

In short, we can find no support for the suggestion that the Thomas

plaintiffs were “virtual representatives” of the EEOC in this case, and therefore

conclude that it would have been clearly erroneous to impute privity to the parties

on this basis.

B. Control

Analytically separate from a finding of virtual representation, the EEOC

could still be found in privity with a private party if it effectively controlled the

private party’s litigation. However, in this case, such control is even less evident

than virtual representation. In Montana v. United States, 440 U.S. 147, 99 S. Ct.
20

970, 59 L. Ed. 2d 210 (1979), the Supreme Court held that preclusion principles

applied to the federal government, barring it from bringing suit against the state of

Montana when a previous similar suit by a private contractor had been adjudicated

on its merits. The Court found privity between the federal government and a

private contractor when:

The Government has stipulated that it: 

(1) required the [original] lawsuit to be filed;

(2) reviewed and approved the complaint;

(3) paid the attorneys’ fees and costs; 

(4) directed the appeal from State District Court to the Montana

Supreme Court;

(5) appeared and submitted a brief as amicus in the Montana Supreme

Court;

(6) directed the filing of a notice of appeal to this Court; and

(7) effectuated [the plaintiff]’s abandonment of that appeal on advice

of the Solicitor General.

Id. at 155, 99 S. Ct. at 974. Under these peculiar circumstances, the Supreme

Court found that the United States “plainly had a sufficient ‘laboring oar’ in the

conduct of the state-court litigation to actuate principles of estoppel.” Id.

In this case, the EEOC did not control the Thomas proceedings. It could not

and did not require the original lawsuit to be filed. It did not hire or pay the

private plaintiffs’ attorneys, fees, and costs, and the EEOC never directed the

Thomas plaintiffs to file or abandon their suit or, for that matter, do anything else.
21

Nor did the EEOC direct the filing of a notice of appeal to this Court, or otherwise

require the Thomas plaintiffs to abandon their claims. In short, there is no

comparison between the control the government exerted over the private litigation

prior to the Montana case and the role the EEOC played in the Thomas action. As

far as we can tell, no panel of this Court has ever before found privity between a

governmental agency and private citizens due to the agency’s control over the

private citizens’ suit. This case would not be a good place to start.

C. Independent Agency Authority

We add that it is particularly rare to find privity between a private party in

one action and a party in a later action when the party in the later action is a

governmental agency. It is a “well-established general principle that the

government is not bound by private litigation when the government’s action seeks

to enforce a federal statute that implicates both public and private interests.” 

Herman v. South Carolina Nat’l Bank,140 F.3d 1413, 1425 (11th Cir. 1998). 

Indeed, if we were to hold that there was privity between the Thomas plaintiffs

and the EEOC due to virtual representation or control, it would be the first time

this Court has ever found this kind of privity between a governmental agency and

the private plaintiffs in a prior action. As the Seventh Circuit has put it, “[t]he
22

Government is not barred by the doctrine of res judicata from maintaining

independent actions asking courts to enforce federal statutes implicating both

public and private interests merely because independent private litigation has also

been commenced or concluded.” Secretary of Labor v. Fitzsimmons, 805 F.2d

682, 692 (7th Cir. 1986). Moreover, most Supreme Court cases addressing the

subject have found that governmental agencies were not bound by the final

judgment in a private suit similar to the one they were bringing. See Hathorn v.

Lovorn, 457 U.S. 255, 268 n.23, 102 S. Ct. 2421, 2430 n.23, 72 L. Ed. 2d 824

(1982); City of Richmond v. United States, 422 U.S. 358, 373 n.6, 95 S. Ct. 2296,

2305 n.6, 45 L. Ed. 2d 245 (1975); Sam Fox Publ’g Co., Inc. v. United States, 366

U.S. 683, 689- 90, 81 S. Ct. 1309, 1313, 6 L. Ed. 2d 604 (1961).

Quite simply, it is so unusual to find privity between a governmental agency

and private plaintiffs because governmental agencies have statutory duties,

responsibilities, and interests that are far broader than the discrete interests of a

private party. In United States v. East Baton Rouge Parish Sch. Bd., 594 F.2d 56

(5th Cir. 1979), the former Fifth Circuit explained this principle in these terms:

[T]he district court’s conclusion [that the private plaintiffs and the

United States were identical] is directly contrary to the general

principle of law that the United States will not be barred from

independent litigation by the failure of a private plaintiff. This

principle is based primarily upon the recognition that the United
23

States has an interest in enforcing federal law that is independent of

any claims of private citizens. In the present context the Supreme

Court has characterized this as “the highest public interest in the due

observance of all constitutional guarantees.”

Id. at 58 (quoting United States v. Raines, 362 U.S. 17, 80 S. Ct. 519, 4 L. Ed. 2d

524 (1960)) (citations omitted). It is precisely this public interest function that

distinguishes governmental agencies from private litigants, and the EEOC is

certainly no exception to the principle that these agencies have responsibilities

with a scope far beyond the legal interests of individual plaintiffs.

In fact, as the Supreme Court has observed about the statutory

responsibilities of the EEOC:

Although the EEOC can secure specific relief, such as hiring or

reinstatement, constructive seniority, or damages for backpay or

benefits denied, on behalf of discrimination victims, the agency is

guided by “the overriding public interest in equal employment

opportunity . . . asserted through direct Federal enforcement.” When

the EEOC acts, albeit at the behest of and for the benefit of specific

individuals, it acts also to vindicate the public interest in preventing

employment discrimination. 

General Tel. Co. of the Northwest, Inc. v. EEOC, 446 U.S. 318, 326, 100 S. Ct.

1698, 1704, 64 L. Ed. 2d 319 (quoting 118 Cong. Rec. 4941 (1972)).

The EEOC has broad authority to enforce employment law as it sees fit,

going beyond the rights of individual plaintiffs. As its authorizing statute says:

The Commission shall have power --
24

(1) to cooperate with and, with their consent, utilize regional, State,

local, and other agencies, both public and private, and individuals;

(2) to pay to witnesses whose depositions are taken or who are

summoned before the Commission or any of its agents the same

witness and mileage fees as are paid to witnesses in the courts of the

United States;

(3) to furnish to persons subject to this subchapter such technical

assistance as they may request to further their compliance with this

subchapter or an order issued thereunder;

(4) upon the request of (i) any employer, whose employees or some of

them, or (ii) any labor organization, whose members or some of them,

refuse or threaten to refuse to cooperate in effectuating the provisions

of this subchapter, to assist in such effectuation by conciliation or

such other remedial action as is provided by this subchapter;

(5) to make such technical studies as are appropriate to effectuate the

purposes and policies of this subchapter and to make the results of

such studies available to the public;

(6) to intervene in a civil action brought under section 2000e-5 of this

title by an aggrieved party against a respondent other than a

government, governmental agency or political subdivision.

42 U.S.C.A. § 2000e-4(g). All of these powers extend far beyond the authority

given to individual aggrieved plaintiffs. The enforcement provision of the Equal

Employment Opportunities subchapter of the Federal Code says that “[t]he

Commission is empowered, as hereinafter provided, to prevent any person from

engaging in any unlawful employment practice.” Id. § 2000e-5(a) (emphasis

added). If conciliation efforts between an employer and employees fail, the EEOC

may also seek classwide relief without being certified as a class representative

under Fed. R. Civ. Pro. 23. See id. § 2000e-5(f)(1); Gen. Tel. Co., 446 U.S. at
25

320; see also id. § 2000e-5(b)-(g) (detailing the EEOC’s enforcement powers and

the types of relief it may obtain pursuant to its statutory authority). Or, as the

Seventh Circuit has put it, “[t]he EEOC’s primary role is that of a law enforcement

agency and it is merely a detail that it pays over any monetary relief obtained to

the victims of the defendant’s violation rather than pocketing the money itself and

putting them to the bother of suing separately.” In re Bemis Co., Inc., 279 F.3d

419, 421 (7th Cir. 2002). In this case, the EEOC has convincingly established that

its enforcement role is incompatible with a finding that its authority to bring an

enforcement action is barred by a judgment in a private suit.

We add that the courts have concluded that the EEOC may proceed with an

enforcement action even where the charging party’s action has been resolved. 

Recently, in EEOC v. Waffle House, Inc., 534 U.S. 279, 122 S. Ct. 754, 151 L. Ed.

2d 755 (2002), the Supreme Court held that the charging party’s agreement to

arbitrate claims did not limit the EEOC’s authority to bring suit, although it was

still “an open question whether a settlement or arbitration judgment would affect

the validity of the EEOC’s claim or the character of relief the EEOC may seek.”

Id. at 297, 122 S. Ct. at 766. In addition, the former Fifth Circuit has held that

“after the termination of a charging party’s private suit the EEOC can bring suit

predicated on, but not limited to, the same charge.” EEOC v. Huttig Sash & Door
26

Co., 511 F.2d 453, 454 (5th Cir. 1975). In that case, the previous suit had been

voluntarily dismissed with prejudice. Id.

Still other courts have reached similar results, rejecting preclusion of EEOC

suits because of prior private actions against the same defendants. See New

Orleans Steamship Ass’n v. EEOC, 680 F.2d 23, 25 (5th Cir. 1982) (“[T]he EEOC

may challenge a transaction which was the subject of prior judicial scrutiny in a

private suit, if the subsequent challenge seeks different relief.”); EEOC v.

Kimberly-Clark Corp., 511 F.2d 1352, 1361-62 (6th Cir. 1975) (holding that the

EEOC was not privy to a private settlement); see also EEOC v. Harris Chernin,

Inc., 10 F.3d 1286, 1291 (7th Cir. 1993) (holding that there was no privity

between a single plaintiff and the EEOC acting solely on his behalf insofar as the

relief the EEOC sought was not individual damages and reinstatement but rather

an injunction against further violation); EEOC v. Goodyear Aerospace Corp., 813

F.2d 1539, 1542-43 (9th Cir. 1987) (same).

If the EEOC may pursue action on behalf of a sole person whose private suit

has been resolved, then it would be truly anomalous to hold that the EEOC could

be barred from bringing action here, when it is acting on behalf of many people

who were not parties at all in the previous action. The opposite is equally true;

resolution of an EEOC case does not necessarily bar private suit from the person
27

on whose behalf the EEOC originally acted. Even when the EEOC’s sole basis for

suit is the allegations of one individual, final judgment on that claim does not bar

her from suing privately in this Circuit. In Riddle v. Cerro Wire and Cable Group,

Inc., 902 F.2d 918 (11th Cir. 1990), an employee was unsatisfied with a consent

degree agreed upon by the EEOC, acting on her behalf, and her employer. She

thus filed her own Title VII suit, and her employer argued that res judicata barred

her action. The district court agreed and granted summary judgment, but a panel

of this Circuit reversed, finding that there was no privity. Id. at 922-23. We

reached this result even though “the EEOC’s suit against Cerro was based solely

on Riddle’s charge of discrimination; it did not involve a class of employees or an

allegation of pattern and practice discrimination,” and the consent decree

“specifically provided personal relief for Riddle.” Id. at 922.

Again, the Court articulated how the interests of the individual plaintiff and

the EEOC differ:

The EEOC is primarily interested in securing equal employment

opportunity in the workplace. That interest is often most completely

advanced through conciliation agreements or consent decrees of the

kind involved in this case, where the employer agrees to take broad

remedial steps to eradicate discrimination. The aggrieved individual,

on the other hand, is primarily interested in securing specific personal

relief of the kind Riddle is seeking in her private action against Cerro.
28

Id. at 922-23. Although the suits against Pemco also differ insofar as the private

suit came first, that fact makes the case for a finding of privity even weaker. After

all, since the EEOC is capable of seeking broader relief than an individual plaintiff

may achieve, if there is no privity when the narrower suit follows the broader

claim, it makes no sense for there to be privity when the broader suit comes later. 

In addition to the EEOC’s own broad mandate, there are also 165 or more AfricanAmerican employees of Pemco who did not participate in the original suit (though

they might have been covered by it had the plaintiffs not dropped their class action

due to Pemco’s opposition).

Urging us not to follow the precedents working against it, Pemco argues

that this is a case of first impression because the private suit was ended with a jury

verdict, while most of the other relevant previous cases involving the EEOC were

settled or arbitrated. Pemco points particularly to Huttig Sash, which was

voluntarily dismissed, and in which the court, in denying privity, warned that “an

employer might seek to settle a particular individual’s grievance in order to

prevent the EEOC from bringing suit on other discriminatory practices discovered

in investigating the original charge.” Huttig Sash, 511 F.2d at 455. Pemco

appeals to this concern to highlight the fact that it may be less of a worry when the

prior action is resolved by a jury verdict rather than by mutually agreed-upon
29

settlement. However, a similar danger exists even when the prior action is fully

contested to a jury verdict, because the private plaintiffs might have fewer

resources, less experienced or able attorneys, or weaker legal claims than does the

EEOC. 

As this review of the case law makes abundantly clear, the overwhelming

weight of precedent in this Circuit and elsewhere weighs heavily against finding

privity between the EEOC and the private plaintiffs. The EEOC’s comprehensive

mandate and authority to petition for broad injunctive and pecuniary relief stands

in stark contrast to the interests of individual plaintiffs in employment actions.

Finally, our holding is particularly warranted in light of the equities of this

case, which weigh strongly against a finding of privity. As Justice Stone put it,

“[i]t is a principle of general application in Anglo-American jurisprudence that

one is not bound by a judgment in personam in a litigation in which he is not

designated as a party or to which he has not been made a party by service of

process.” Hansberry v. Lee, 311 U.S. 32, 40, 615 S. Ct. 115, 117 (1940) (citing

Pennoyer v. Neff, 95 U.S. 714, 24 L. Ed. 565 (1877)). Pemco did its best to keep

the EEOC out of the original litigation, objecting strenuously that allowing it in as

a party would create an unduly burdensome trial and “powerfully” prejudice the

defendant. Now Pemco is trying to bind the EEOC to the adverse result in the suit
30

that it successfully kept the EEOC from participating in. That result would, we

think, set a grossly inequitable precedent: it would open the door for defendants to

seek to keep the EEOC out of private litigation, and then try to preclude the EEOC

-- which may have more resources and effective legal representation, and therefore

a better chance of winning at trial, than private plaintiffs do -- from suing on its

own. Allowing the resolution of a private suit to bar a federal agency’s separate

action “would impose an onerous and extensive burden upon the United States to

monitor private litigation in order to ensure that possible mishandling of a claim

by a private plaintiff could be corrected by intervention.” East Baton Rouge

Parish Sch. Bd., 594 F.2d at 58. This could severely curtail the enforcement

powers of the EEOC and other governmental agencies by allowing the dismissal

of their cases due to the result of litigation over which they have no control. In

this case the result we reach is not difficult because we can find neither the indicia

of “virtual representation” nor those of “control.”

In short, we are persuaded that the district court clearly erred in finding

privity between the EEOC and the Thomas plaintiffs. Moreover, it seems to us

wholly inequitable to hold the EEOC bound by the result in a case that it was not

allowed to take part in. Because there is no privity between the parties, we need

not and do not examine the other factors necessary to find res judicata or collateral
31

estoppel. The district court, in entering judgment against the EEOC, noted wryly

that “[a]fter a sufficient number of battles, even the Hatfields and McCoys put

down their guns.” Slip op. at 7. In this case, however, the district court

erroneously prevented the McCoys from picking up their guns in the first place.

REVERSED and REMANDED.