Taylor v. Sturgell

=== Opinion ===

(Slip Opinion)              OCTOBER TERM, 2007                                       1

                                       Syllabus

         NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
       being done in connection with this case, at the time the opinion is issued.
       The syllabus constitutes no part of the opinion of the Court but has been
       prepared by the Reporter of Decisions for the convenience of the reader.
       See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.


SUPREME COURT OF THE UNITED STATES

                                       Syllabus

  TAYLOR v. STURGELL, ACTING ADMINISTRATOR, 

   FEDERAL AVIATION ADMINISTRATION, ET AL. 


CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
          THE DISTRICT OF COLUMBIA CIRCUIT

       No. 07–371.      Argued April 16, 2008—Decided June 12, 2008
Greg Herrick, an antique aircraft enthusiast seeking to restore a vin-
 tage airplane manufactured by the Fairchild Engine and Airplane
 Corporation (FEAC), filed a Freedom of Information Act (FOIA) re-
 quest asking the Federal Aviation Administration (FAA) for copies of
 technical documents related to the airplane. The FAA denied his re-
 quest based on FOIA’s exemption for trade secrets, see 5 U. S. C.
 §552(b)(4). Herrick took an administrative appeal, but when respon-
 dent Fairchild, FEAC’s successor, objected to the documents’ release,
 the FAA adhered to its original decision. Herrick then filed an un-
 successful FOIA lawsuit to secure the documents. Less than a month
 after that suit was resolved, petitioner Taylor, Herrick’s friend and
 an antique aircraft enthusiast himself, made a FOIA request for the
 same documents Herrick had unsuccessfully sued to obtain. When
 the FAA failed to respond, Taylor filed suit in the U. S. District Court
 for the District of Columbia. Holding the suit barred by claim preclu-
 sion, the District Court granted summary judgment to the FAA and
 to Fairchild, as intervenor in Taylor’s action. The court acknowl-
 edged that Taylor was not a party to Herrick’s suit, but held that a
 nonparty may be bound by a judgment if she was “virtually repre-
 sented” by a party. The D. C. Circuit affirmed, announcing a five-
 factor test for “virtual representation.” The first two factors of the
 D. C. Circuit’s test—“identity of interests” and “adequate representa-
 tion”—are necessary but not sufficient for virtual representation. In
 addition, at least one of three other factors must be established: “a
 close relationship between the present party and his putative repre-
 sentative,” “substantial participation by the present party in the first
 case,” or “tactical maneuvering on the part of the present party to
2                         TAYLOR v. STURGELL

                                  Syllabus

    avoid preclusion by the prior judgment.” The D. C. Circuit acknowl-
    edged the absence of any indication that Taylor participated in, or
    even had notice of, Herrick’s suit. It nonetheless found the “identity
    of interests,” “adequate representation,” and “close relationship” fac-
    tors satisfied because the two men sought release of the same docu-
    ments, were “close associates,” had discussed working together to re-
    store Herrick’s plane, and had used the same lawyer to pursue their
    suits. Because these conditions sufficed to establish virtual represen-
    tation, the court left open the question whether Taylor had engaged
    in tactical maneuvering to avoid preclusion.
Held:
    1. The theory of preclusion by “virtual representation” is disap-
 proved. The preclusive effects of a judgment in a federal-question
 case decided by a federal court should instead be determined accord-
 ing to the established grounds for nonparty preclusion. Pp. 9–21.
       (a) The preclusive effect of a federal-court judgment is deter-
 mined by federal common law, subject to due process limitations.
 Pp. 9–13.
         (1) Extending the preclusive effect of a judgment to a nonparty
 runs up against the “deep-rooted historic tradition that everyone
 should have his own day in court.” Richards v. Jefferson County, 517
 U. S. 793, 798 (internal quotation marks omitted). Indicating the
 strength of that tradition, this Court has often repeated the general
 rule that “one is not bound by a judgment in personam in a litigation
 in which he is not designated a party or to which he has not been
 made a party by service of process.” Hansberry v. Lee, 311 U. S. 32,
 40. Pp. 9–10.
         (2) The rule against nonparty preclusion is subject to excep-
 tions, grouped for present purposes into six categories. First, “[a]
 person who agrees to be bound by the determination of issues in an
 action between others is bound in accordance with the [agreement’s]
 terms.” Restatement (Second) of Judgments §40. Second, nonparty
 preclusion may be based on a pre-existing substantive legal relation-
 ship between the person to be bound and a party to the judgment,
 e.g., assignee and assignor. Third, “in certain limited circumstances,”
 a nonparty may be bound by a judgment because she was “ ‘ade-
 quately represented by someone with the same interests who [wa]s a
 party’ ” to the suit. Richards, 517 U. S., at 798. Fourth, a nonparty is
 bound by a judgment if she “assume[d] control” over the litigation in
 which that judgment was rendered. Montana v. United States, 440
 U. S. 147, 154. Fifth, a party bound by a judgment may not avoid its
 preclusive force by relitigating through a proxy. Preclusion is thus in
 order when a person who did not participate in litigation later brings
 suit as the designated representative or agent of a person who was a
                    Cite as: 553 U. S. ____ (2008)                      3

                               Syllabus

party to the prior adjudication. Sixth, a special statutory scheme
otherwise consistent with due process—e.g., bankruptcy proceed-
ings—may “expressly foreclos[e] successive litigation by nonliti-
gants.” Martin v. Wilks, 490 U. S. 755, 762, n. 2. Pp. 10–13.
     (b) Reaching beyond these six categories, the D. C. Circuit recog-
nized a broad “virtual representation” exception to the rule against
nonparty preclusion. None of the arguments advanced by that court,
the FAA, or Fairchild justify such an expansive doctrine. Pp. 13–22.
       (1) The D. C. Circuit purported to ground its doctrine in this
Court’s statements that, in some circumstances, a person may be
bound by a judgment if she was adequately represented by a party to
the proceeding yielding that judgment. But the D. C. Circuit’s defini-
tion of “adequate representation” strayed from the meaning this
Court has attributed to that term. In Richards, the Alabama Su-
preme Court had held a tax challenge barred by a judgment uphold-
ing the same tax in a suit by different taxpayers. 517 U. S., at 795–
797. This Court reversed, holding that nonparty preclusion was in-
consistent with due process where there was no showing (1) that the
court in the first suit “took care to protect the interests” of absent
parties, or (2) that the parties to the first litigation “understood their
suit to be on behalf of absent [parties],” id., at 802. In holding that
representation can be “adequate” for purposes of nonparty preclusion
even where these two factors are absent, the D. C. Circuit misappre-
hended Richards. Pp. 14–15.
       (2) Fairchild and the FAA ask this Court to abandon altogether
the attempt to delineate discrete grounds and clear rules for non-
party preclusion. Instead, they contend, only an equitable and heav-
ily fact-driven inquiry can account for all of the situations in which
nonparty preclusion is appropriate. This argument is rejected. First,
respondents’ balancing test is at odds with the constrained approach
advanced by this Court’s decisions, which have endeavored to deline-
ate discrete, limited exceptions to the fundamental rule that a liti-
gant is not bound by a judgment to which she was not a party, see,
e.g., Richards, 517 U. S., at 798–799. Second, a party’s representa-
tion of a nonparty is “adequate” for preclusion purposes only if, at a
minimum: (1) the interests of the nonparty and her representative
are aligned, see Hansberry, 311 U. S., at 43, and (2) either the party
understood herself to be acting in a representative capacity or the
original court took care to protect the nonparty’s interests, see Rich-
ards, 517 U. S., at 801–802. Adequate representation may also re-
quire (3) notice of the original suit to the persons alleged to have been
represented. See id., at 801. In the class-action context, these limi-
tations are implemented by Federal Rule of Civil Procedure 23’s pro-
cedural safeguards. But an expansive virtual representation doctrine
4                          TAYLOR v. STURGELL

                                   Syllabus

    would recognize a common-law kind of class action shorn of these
    protections. Third, a diffuse balancing approach to nonparty preclu-
    sion would likely complicate the task of district courts faced in the
    first instance with preclusion questions. Pp. 15–19.
            (3) Finally, the FAA contends that nonparty preclusion should
    apply more broadly in “public-law” litigation than in “private-law”
    controversies. First, the FAA points to Richards’ acknowledgment
    that when a taxpayer challenges “an alleged misuse of public funds”
    or “other public action,” the suit “has only an indirect impact on [the
    plaintiff’s] interests,” 517 U. S., at 803, and “the States have wide
    latitude to establish procedures [limiting] the number of judicial pro-
    ceedings that may be entertained,” ibid. In contrast to the public-law
    litigation contemplated in Richards, however, a successful FOIA ac-
    tion results in a grant of relief to the individual plaintiff, not a decree
    benefiting the public at large. Furthermore, Richards said only that,
    for the type of public-law claims there envisioned, States were free to
    adopt procedures limiting repetitive litigation. While it appears
    equally evident that Congress can adopt such procedures, it hardly
    follows that this Court should proscribe or confine successive FOIA
    suits by different requesters. Second, the FAA argues that, because
    the number of plaintiffs in public-law cases is potentially limitless, it
    is theoretically possible for several persons to coordinate a series of
    vexatious repetitive lawsuits. But this risk does not justify departing
    from the usual nonparty preclusion rules. Stare decisis will allow
    courts to dispose of repetitive suits in the same circuit, and even
    when stare decisis is not dispositive, the human inclination not to
    waste money should discourage suits based on claims or issues al-
    ready decided. Pp. 19–22.
       2. The remaining question is whether the result reached by the
    courts below can be justified based on one of the six the established
    grounds for nonparty preclusion. With one exception, those grounds
    plainly have no application here. Respondents argue that Taylor’s
    suit is a collusive attempt to relitigate Herrick’s claim. That argu-
    ment justifies a remand to allow the courts below the opportunity to
    determine whether the fifth ground for nonparty preclusion—
    preclusion because a nonparty to earlier litigation has brought suit as
    an agent of a party bound by the prior adjudication—applies to Tay-
    lor’s suit. But courts should be cautious about finding preclusion on
    the basis of agency. A mere whiff of “tactical maneuvering” will not
    suffice; instead, principles of agency law indicate that preclusion is
    appropriate only if the putative agent’s conduct of the suit is subject
    to the control of the party who is bound by the prior adjudication.
    Finally, the Court rejects Fairchild’s suggestion that Taylor must
    bear the burden of proving he is not acting as Herrick’s agent. Claim
                    Cite as: 553 U. S. ____ (2008)                 5

                               Syllabus

  preclusion is an affirmative defense for the defendant to plead and
  prove. Pp. 22–25.
490 F. 3d 965, vacated and remanded.

  GINSBURG, J., delivered the opinion for a unanimous Court.
                        Cite as: 553 U. S. ____ (2008)                              1

                             Opinion of the Court

     NOTICE: This opinion is subject to formal revision before publication in the
     preliminary print of the United States Reports. Readers are requested to
     notify the Reporter of Decisions, Supreme Court of the United States, Wash-
     ington, D. C. 20543, of any typographical or other formal errors, in order
     that corrections may be made before the preliminary print goes to press.


SUPREME COURT OF THE UNITED STATES
                                   _________________

                                   No. 07–371
                                   _________________


     BRENT TAYLOR, PETITIONER v. ROBERT A. 

       STURGELL, ACTING ADMINISTRATOR, 

          FEDERAL AVIATION ADMINIS-
                TRATION, ET AL. 

 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

    APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

                                 [June 12, 2008] 


   JUSTICE GINSBURG delivered the opinion of the Court.
   “It is a principle of general application in Anglo-
American jurisprudence that one is not bound by a judg-
ment in personam in a litigation in which he is not desig-
nated 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
(1940). Several exceptions, recognized in this Court’s
decisions, temper this basic rule. In a class action, for
example, a person not named as a party may be bound by
a judgment on the merits of the action, if she was ade-
quately represented by a party who actively participated
in the litigation. See id., at 41. In this case, we consider
for the first time whether there is a “virtual representa-
tion” exception to the general rule against precluding
nonparties. Adopted by a number of courts, including the
courts below in the case now before us, the exception so
styled is broader than any we have so far approved.
   The virtual representation question we examine in this
opinion arises in the following context. Petitioner Brent
2                   TAYLOR v. STURGELL

                      Opinion of the Court

Taylor filed a lawsuit under the Freedom of Information
Act seeking certain documents from the Federal Aviation
Administration. Greg Herrick, Taylor’s friend, had previ-
ously brought an unsuccessful suit seeking the same
records. The two men have no legal relationship, and
there is no evidence that Taylor controlled, financed,
participated in, or even had notice of Herrick’s earlier suit.
Nevertheless, the D. C. Circuit held Taylor’s suit pre-
cluded by the judgment against Herrick because, in that
court’s assessment, Herrick qualified as Taylor’s “virtual
representative.”
  We disapprove the doctrine of preclusion by “virtual
representation,” and hold, based on the record as it now
stands, that the judgment against Herrick does not bar
Taylor from maintaining this suit.
                             I
   The Freedom of Information Act (FOIA) accords “any
person” a right to request any records held by a federal
agency. 5 U. S. C. §552(a)(3)(A) (2006 ed.). No reason
need be given for a FOIA request, and unless the re-
quested materials fall within one of the Act’s enumerated
exemptions, see §552(a)(3)(E), (b), the agency must “make
the records promptly available” to the requester,
§552(a)(3)(A). If an agency refuses to furnish the re-
quested records, the requester may file suit in federal
court and obtain an injunction “order[ing] the production
of any agency records improperly withheld.” §552(a)(4)(B).
   The courts below held the instant FOIA suit barred by
the judgment in earlier litigation seeking the same re-
cords. Because the lower courts’ decisions turned on the
connection between the two lawsuits, we begin with a full
account of each action.
                             A
    The first suit was filed by Greg Herrick, an antique
                  Cite as: 553 U. S. ____ (2008)            3

                      Opinion of the Court

aircraft enthusiast and the owner of an F–45 airplane, a
vintage model manufactured by the Fairchild Engine and
Airplane Corporation (FEAC) in the 1930’s. In 1997,
seeking information that would help him restore his plane
to its original condition, Herrick filed a FOIA request
asking the Federal Aviation Administration (FAA) for
copies of any technical documents about the F–45 con-
tained in the agency’s records.
   To gain a certificate authorizing the manufacture and
sale of the F–45, FEAC had submitted to the FAA’s prede-
cessor, the Civil Aeronautics Authority, detailed specifica-
tions and other technical data about the plane. Hundreds
of pages of documents produced by FEAC in the certifica-
tion process remain in the FAA’s records. The FAA denied
Herrick’s request, however, upon finding that the docu-
ments he sought are subject to FOIA’s exemption for
“trade secrets and commercial or financial information
obtained from a person and privileged or confidential,” 5
U. S. C. §552(b)(4) (2006 ed.). In an administrative ap-
peal, Herrick urged that FEAC and its successors had
waived any trade-secret protection. The FAA thereupon
contacted FEAC’s corporate successor, respondent Fair-
child Corporation (Fairchild). Because Fairchild objected
to release of the documents, the agency adhered to its
original decision.
   Herrick then filed suit in the U. S. District Court for the
District of Wyoming. Challenging the FAA’s invocation of
the trade-secret exemption, Herrick placed heavy weight
on a 1955 letter from FEAC to the Civil Aeronautics Au-
thority. The letter authorized the agency to lend any
documents in its files to the public “for use in making
repairs or replacement parts for aircraft produced by
Fairchild.” Herrick v. Garvey, 298 F. 3d 1184, 1193 (CA10
2002) (internal quotation marks omitted). This broad
authorization, Herrick maintained, showed that the F–45
certification records held by the FAA could not be re-
4                  TAYLOR v. STURGELL

                     Opinion of the Court

garded as “secre[t]” or “confidential” within the meaning of
§552(b)(4).
   Rejecting Herrick’s argument, the District Court
granted summary judgment to the FAA. Herrick v.
Garvey, 200 F. Supp. 2d 1321, 1328–1329 (Wyo. 2000).
The 1955 letter, the court reasoned, did not deprive the F–
45 certification documents of trade-secret status, for those
documents were never in fact released pursuant to the
letter’s blanket authorization. See id., at 1329. The court
also stated that even if the 1955 letter had waived trade-
secret protection, Fairchild had successfully “reversed” the
waiver by objecting to the FAA’s release of the records to
Herrick. Ibid.
   On appeal, the Tenth Circuit agreed with Herrick that
the 1955 letter had stripped the requested documents of
trade-secret protection. See Herrick, 298 F. 3d, at 1194.
But the Court of Appeals upheld the District Court’s al-
ternative determination—i.e., that Fairchild had restored
trade-secret status by objecting to Herrick’s FOIA request.
Id., at 1195. On that ground, the appeals court affirmed
the entry of summary judgment for the FAA.
   In so ruling, the Tenth Circuit noted that Herrick had
failed to challenge two suppositions underlying the Dis-
trict Court’s decision. First, the District Court assumed
trade-secret status could be “restored” to documents that
had lost protection. Id., at 1194, n. 10. Second, the Dis-
trict Court also assumed that Fairchild had regained
trade-secret status for the documents even though the
company claimed that status only “after Herrick had
initiated his request” for the F–45 records. Ibid. The
Court of Appeals expressed no opinion on the validity of
these suppositions. See id., at 1194–1195, n. 10.
                           B
  The Tenth Circuit’s decision issued on July 24, 2002.
Less than a month later, on August 22, petitioner Brent
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                         Opinion of the Court

Taylor—a friend of Herrick’s and an antique aircraft
enthusiast in his own right—submitted a FOIA request
seeking the same documents Herrick had unsuccessfully
sued to obtain. When the FAA failed to respond, Taylor
filed a complaint in the U. S. District Court for the District
of Columbia. Like Herrick, Taylor argued that FEAC’s
1955 letter had stripped the records of their trade-secret
status. But Taylor also sought to litigate the two issues
concerning recapture of protected status that Herrick had
failed to raise in his appeal to the Tenth Circuit.
   After Fairchild intervened as a defendant,1 the District
Court in D. C. concluded that Taylor’s suit was barred by
claim preclusion; accordingly, it granted summary judg-
ment to Fairchild and the FAA. The court acknowledged
that Taylor was not a party to Herrick’s suit. Relying on
the Eighth Circuit’s decision in Tyus v. Schoemehl, 93
F. 3d 449 (1996), however, it held that a nonparty may be
bound by a judgment if she was “virtually represented” by
a party. App. to Pet. for Cert. 30a–31a.
   The Eighth Circuit’s seven-factor test for virtual repre-
sentation, adopted by the District Court in Taylor’s case,
requires an “identity of interests” between the person to be
bound and a party to the judgment. See id., at 31a. See
also Tyus, 93 F. 3d, at 455. Six additional factors counsel
in favor of virtual representation under the Eighth Cir-
cuit’s test, but are not prerequisites: (1) a “close relation-
ship” between the present party and a party to the judg-
ment alleged to be preclusive; (2) “participation in the
prior litigation” by the present party; (3) the present
party’s “apparent acquiescence” to the preclusive effect of
the judgment; (4) “deliberat[e] maneuver[ing]” to avoid the

——————
  1 Although  Fairchild provided documents to the Wyoming District
Court and filed an amicus brief in the Tenth Circuit, it was not a party
to Herrick’s suit. See Herrick v. Garvey, 298 F. 3d 1184, 1188 (CA10
2002); Herrick v. Garvey, 200 F. Supp. 2d 1321, 1327 (Wyo. 2000).
6                   TAYLOR v. STURGELL

                     Opinion of the Court

effect of the judgment; (5) adequate representation of the
present party by a party to the prior adjudication; and (6)
a suit raising a “public law” rather than a “private law”
issue. App. to Pet. for Cert. 31a (citing Tyus, 93 F. 3d, at
454–456). These factors, the D. C. District Court ob-
served, “constitute a fluid test with imprecise boundaries”
and call for “a broad, case-by-case inquiry.” App. to Pet.
for Cert. 32a.
   The record before the District Court in Taylor’s suit
revealed the following facts about the relationship be-
tween Taylor and Herrick: Taylor is the president of the
Antique Aircraft Association, an organization to which
Herrick belongs; the two men are “close associate[s],” App.
54; Herrick asked Taylor to help restore Herrick’s F–45,
though they had no contract or agreement for Taylor’s
participation in the restoration; Taylor was represented by
the lawyer who represented Herrick in the earlier litiga-
tion; and Herrick apparently gave Taylor documents that
Herrick had obtained from the FAA during discovery in
his suit.
   Fairchild and the FAA conceded that Taylor had not
participated in Herrick’s suit. App. to Pet. for Cert. 32a.
The D. C. District Court determined, however, that Her-
rick ranked as Taylor’s virtual representative because the
facts fit each of the other six indicators on the Eighth
Circuit’s list. See id., at 32a–35a. Accordingly, the Dis-
trict Court held Taylor’s suit, seeking the same documents
Herrick had requested, barred by the judgment against
Herrick. See id., at 35a.
   The D. C. Circuit affirmed. It observed, first, that other
Circuits “vary widely” in their approaches to virtual repre-
sentation. Taylor v. Blakey, 490 F. 3d 965, 971 (2007). In
this regard, the D. C. Circuit contrasted the multifactor
balancing test applied by the Eighth Circuit and the D. C.
District Court with the Fourth Circuit’s narrower ap-
proach, which “treats a party as a virtual representative
                 Cite as: 553 U. S. ____ (2008)            7

                     Opinion of the Court

only if the party is ‘accountable to the nonparties who file
a subsequent suit’ and has ‘the tacit approval of the court’
to act on the nonpart[ies’] behalf.” Ibid. (quoting Klugh v.
United States, 818 F. 2d 294, 300 (CA4 1987)).
   Rejecting both of these approaches, the D. C. Circuit
announced its own five-factor test. The first two factors—
“identity of interests” and “adequate representation”—are
necessary but not sufficient for virtual representation.
490 F. 3d, at 971–972. In addition, at least one of three
other factors must be established: “a close relationship
between the present party and his putative representa-
tive,” “substantial participation by the present party in the
first case,” or “tactical maneuvering on the part of the
present party to avoid preclusion by the prior judgment.”
Id., at 972.
   Applying this test to the record in Taylor’s case, the
D. C. Circuit found both of the necessary conditions for
virtual representation well met. As to identity of inter-
ests, the court emphasized that Taylor and Herrick sought
the same result—release of the F–45 documents. More-
over, the D. C. Circuit observed, Herrick owned an F–45
airplane, and therefore had “if anything, a stronger incen-
tive to litigate” than Taylor, who had only a “general
interest in public disclosure and the preservation of an-
tique aircraft heritage.” Id., at 973 (internal quotation
marks omitted).
   Turning to adequacy of representation, the D. C. Circuit
acknowledged that some other Circuits regard notice of a
prior suit as essential to a determination that a nonparty
was adequately represented in that suit. See id., at 973–
974 (citing Perez v. Volvo Car Corp., 247 F. 3d 303, 312
(CA1 2001), and Tice v. American Airlines, Inc., 162 F. 3d
966, 973 (CA7 1998)). Disagreeing with these courts, the
D. C. Circuit deemed notice an “important” but not an
indispensable element in the adequacy inquiry. The court
then concluded that Herrick had adequately represented
8                       TAYLOR v. STURGELL

                          Opinion of the Court

Taylor even though Taylor had received no notice of
Herrick’s suit. For this conclusion, the appeals court
relied on Herrick’s “strong incentive to litigate” and
Taylor’s later engagement of the same attorney, which
indicated to the court Taylor’s satisfaction with that attor-
ney’s performance in Herrick’s case. See 490 F. 3d, at
974–975.
  The D. C. Circuit also found its “close relationship”
criterion met, for Herrick had “asked Taylor to assist him
in restoring his F–45” and “provided information to Taylor
that Herrick had obtained through discovery”; further-
more, Taylor “did not oppose Fairchild’s characterization
of Herrick as his ‘close associate.’ ” Id., at 975. Because
the three above-described factors sufficed to establish
virtual representation under the D. C. Circuit’s five-factor
test, the appeals court left open the question whether
Taylor had engaged in “tactical maneuvering.” See id., at
976 (calling the facts bearing on tactical maneuvering
“ambigu[ous]”).2
  We granted certiorari, 552 U. S. ___ (2008), to resolve
the disagreement among the Circuits over the permis-
sibility and scope of preclusion based on “virtual
representation.”3

——————
  2 The D. C. Circuit did not discuss the District Court’s distinction

between public-law and private-law claims.
  3 The Ninth Circuit applies a five-factor test similar to the D. C. Cir-

cuit’s. See Kourtis v. Cameron, 419 F. 3d 989, 996 (2005). The Fifth,
Sixth, and Eleventh Circuits, like the Fourth Circuit, have constrained
the reach of virtual representation by requiring, inter alia, the exis-
tence of a legal relationship between the nonparty to be bound and the
putative representative. See Pollard v. Cockrell, 578 F. 2d 1002, 1008
(CA5 1978); Becherer v. Merrill Lynch, Pierce, Fenner, & Smith, Inc.,
193 F. 3d 415, 424 (CA6 1999); EEOC v. Pemco Aeroplex, Inc., 383 F. 3d
1280, 1289 (CA11 2004). The Seventh Circuit, in contrast, has rejected
the doctrine of virtual representation altogether. See Perry v. Globe
Auto Recycling, Inc., 227 F. 3d 950, 953 (2000).
                     Cite as: 553 U. S. ____ (2008) 
                 9

                         Opinion of the Court 


                             II 

  The preclusive effect of a federal-court judgment is
determined by federal common law. See Semtek Int’l Inc.
v. Lockheed Martin Corp., 531 U. S. 497, 507–508 (2001).
For judgments in federal-question cases—for example,
Herrick’s FOIA suit—federal courts participate in develop-
ing “uniform federal rule[s]” of res judicata, which this
Court has ultimate authority to determine and declare.
Id., at 508.4 The federal common law of preclusion is, of
course, subject to due process limitations. See Richards v.
Jefferson County, 517 U. S. 793, 797 (1996).
  Taylor’s case presents an issue of first impression in this
sense: Until now, we have never addressed the doctrine of
“virtual representation” adopted (in varying forms) by
several Circuits and relied upon by the courts below. Our
inquiry, however, is guided by well-established precedent
regarding the propriety of nonparty preclusion. We review
that precedent before taking up directly the issue of vir-
tual representation.
                              A
   The preclusive effect of a judgment is defined by claim
preclusion and issue preclusion, which are collectively
referred to as “res judicata.”5 Under the doctrine of claim
preclusion, a final judgment forecloses “successive litiga-
tion of the very same claim, whether or not relitigation of
the claim raises the same issues as the earlier suit.” New

——————
  4 For judgments in diversity cases, federal law incorporates the rules

of preclusion applied by the State in which the rendering court sits.
See Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U. S. 497, 508
(2001).
  5 These terms have replaced a more confusing lexicon. Claim preclu-

sion describes the rules formerly known as “merger” and “bar,” while
issue preclusion encompasses the doctrines once known as “collateral
estoppel” and “direct estoppel.” See Migra v. Warren City School Dist.
Bd. of Ed., 465 U. S. 75, 77, n. 1 (1984).
10                     TAYLOR v. STURGELL

                        Opinion of the Court

Hampshire v. Maine, 532 U. S. 742, 748 (2001). Issue
preclusion, in contrast, bars “successive litigation of an
issue of fact or law actually litigated and resolved in a
valid court determination essential to the prior judgment,”
even if the issue recurs in the context of a different claim.
Id., at 748–749. By “preclud[ing] parties from contesting
matters that they have had a full and fair opportunity to
litigate,” these two doctrines protect against “the expense
and vexation attending multiple lawsuits, conserv[e]
judicial resources, and foste[r] reliance on judicial action
by minimizing the possibility of inconsistent decisions.”
Montana v. United States, 440 U. S. 147, 153–154 (1979).
   A person who was not a party to a suit generally has not
had a “full and fair opportunity to litigate” the claims and
issues settled in that suit. The application of claim and
issue preclusion to nonparties thus runs up against the
“deep-rooted historic tradition that everyone should have
his own day in court.” Richards, 517 U. S., at 798 (inter-
nal quotation marks omitted). Indicating the strength of
that tradition, we have often repeated the general rule
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, 311 U. S., at 40. See also, e.g., Richards, 517
U. S., at 798; Martin v. Wilks, 490 U. S. 755, 761 (1989);
Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U. S.
100, 110 (1969).
                           B
  Though hardly in doubt, the rule against nonparty
preclusion is subject to exceptions. For present pur-
poses, the recognized exceptions can be grouped into six
categories.6
——————
  6 The established grounds for nonparty preclusion could be organized

differently. See, e.g., 1 & 2 Restatement (Second) of Judgments §§39–
62 (1980) (hereinafter Restatement); D. Shapiro, Civil Procedure:
                     Cite as: 553 U. S. ____ (2008)                  11

                         Opinion of the Court

   First, “[a] person who agrees to be bound by the deter-
mination of issues in an action between others is bound in
accordance with the terms of his agreement.” 1 Restate-
ment (Second) of Judgments §40, p. 390 (1980) (hereinaf-
ter Restatement). For example, “if separate actions in-
volving the same transaction are brought by different
plaintiffs against the same defendant, all the parties to all
the actions may agree that the question of the defendant’s
liability will be definitely determined, one way or the
other, in a ‘test case.’ ” D. Shapiro, Civil Procedure: Pre-
clusion in Civil Actions 77–78 (2001) (hereinafter Shapiro).
See also California v. Texas, 459 U. S. 1096, 1097 (1983)
(dismissing certain defendants from a suit based on a
stipulation “that each of said defendants . . . will be bound
by a final judgment of this Court” on a specified issue).7
   Second, nonparty preclusion may be justified based on a
variety of pre-existing “substantive legal relationship[s]”
between the person to be bound and a party to the judg-
ment. Shapiro 78. See also Richards, 517 U. S., at 798.
Qualifying relationships include, but are not limited to,
preceding and succeeding owners of property, bailee and
bailor, and assignee and assignor. See 2 Restatement
§§43–44, 52, 55. These exceptions originated “as much
from the needs of property law as from the values of pre-
clusion by judgment.” 18A C. Wright, A. Miller, & E.
Cooper, Federal Practice and Procedure §4448, p. 329 (2d

——————
Preclusion in Civil Actions 75–92 (2001); 18A C. Wright, A. Miller, & E.
Cooper, Federal Practice and Procedure §4448, pp. 327–329 (2d ed.
2002) (hereinafter Wright & Miller). The list that follows is meant only
to provide a framework for our consideration of virtual representation,
not to establish a definitive taxonomy.
  7 The Restatement observes that a nonparty may be bound not only

by express or implied agreement, but also through conduct inducing
reliance by others. See 2 Restatement §62. See also 18A Wright &
Miller §4453, pp. 425–429. We have never had occasion to consider this
ground for nonparty preclusion, and we express no view on it here.
12                      TAYLOR v. STURGELL

                          Opinion of the Court

ed. 2002) (hereinafter Wright & Miller).8
  Third, we have confirmed that, “in certain limited cir-
cumstances,” a nonparty may be bound by a judgment
because she was “adequately represented by someone with
the same interests who [wa]s a party” to the suit. Rich-
ards, 517 U. S., at 798 (internal quotation marks omitted).
Representative suits with preclusive effect on nonparties
include properly conducted class actions, see Martin, 490
U. S., at 762, n. 2 (citing Fed. Rule Civ. Proc. 23), and suits
brought by trustees, guardians, and other fiduciaries, see
Sea-Land Services, Inc. v. Gaudet, 414 U. S. 573, 593
(1974). See also 1 Restatement §41.
  Fourth, a nonparty is bound by a judgment if she “as-
sume[d] control” over the litigation in which that judg-
ment was rendered. Montana, 440 U. S., at 154. See also
Schnell v. Peter Eckrich & Sons, Inc., 365 U. S. 260, 262,
n. 4 (1961); 1 Restatement §39. Because such a person has
had “the opportunity to present proofs and argument,” he
has already “had his day in court” even though he was not
a formal party to the litigation. Id., Comment a, p. 382.
  Fifth, a party bound by a judgment may not avoid its
preclusive force by relitigating through a proxy. Preclu-
sion is thus in order when a person who did not partici-
pate in a litigation later brings suit as the designated
representative of a person who was a party to the prior
adjudication. See Chicago, R. I. & P. R. Co. v. Schendel,
270 U. S. 611, 620, 623 (1926); 18A Wright & Miller §4454,
pp. 433–434. And although our decisions have not ad-
——————
  8 The  substantive legal relationships justifying preclusion are some-
times collectively referred to as “privity.” See, e.g., Richards v. Jeffer-
son County, 517 U. S. 793, 798 (1996); 2 Restatement §62, Comment a.
The term “privity,” however, has also come to be used more broadly, as
a way to express the conclusion that nonparty preclusion is appropriate
on any ground. See 18A Wright & Miller §4449, pp. 351–353, and n. 33
(collecting cases). To ward off confusion, we avoid using the term
“privity” in this opinion.
                 Cite as: 553 U. S. ____ (2008)           13

                     Opinion of the Court

dressed the issue directly, it also seems clear that preclu-
sion is appropriate when a nonparty later brings suit as
an agent for a party who is bound by a judgment. See id.,
§4449, p. 335.
  Sixth, in certain circumstances a special statutory
scheme may “expressly foreclos[e] successive litigation by
nonlitigants . . . if the scheme is otherwise consistent with
due process.” Martin, 490 U. S., at 762, n. 2. Examples of
such schemes include bankruptcy and probate proceed-
ings, see ibid., and quo warranto actions or other suits
that, “under [the governing] law, [may] be brought only on
behalf of the public at large,” Richards, 517 U. S., at 804.
                             III
   Reaching beyond these six established categories, some
lower courts have recognized a “virtual representation”
exception to the rule against nonparty preclusion. Deci-
sions of these courts, however, have been far from consis-
tent. See 18A Wright & Miller §4457, p. 513 (virtual
representation lacks a “clear or coherent theory”; decisions
applying it have “an episodic quality”). Some Circuits use
the label, but define “virtual representation” so that it is
no broader than the recognized exception for adequate
representation. See, e.g., Becherer v. Merrill Lynch,
Pierce, Fenner & Smith, Inc., 193 F. 3d 415, 423, 427 (CA6
1999). But other courts, including the Eighth, Ninth, and
D. C. Circuits, apply multifactor tests for virtual represen-
tation that permit nonparty preclusion in cases that do not
fit within any of the established exceptions. See supra, at
5–8, and n. 3.
   The D. C. Circuit, the FAA, and Fairchild have pre-
sented three arguments in support of an expansive doc-
trine of virtual representation. We find none of them
persuasive.
14                   TAYLOR v. STURGELL

                      Opinion of the Court 


                                A

   The D. C. Circuit purported to ground its virtual repre-
sentation doctrine in this Court’s decisions stating that, in
some circumstances, a person may be bound by a judg-
ment if she was adequately represented by a party to the
proceeding yielding that judgment. See 490 F. 3d, at 970–
971. But the D. C. Circuit’s definition of “adequate repre-
sentation” strayed from the meaning our decisions have
attributed to that term.
   In Richards, we reviewed a decision by the Alabama
Supreme Court holding that a challenge to a tax was
barred by a judgment upholding the same tax in a suit
filed by different taxpayers. 517 U. S., at 795–797. The
plaintiffs in the first suit “did not sue on behalf of a class,”
their complaint “did not purport to assert any claim
against or on behalf of any nonparties,” and the judgment
“did not purport to bind” nonparties. Id., at 801. There
was no indication, we emphasized, that the court in the
first suit “took care to protect the interests” of absent
parties, or that the parties to that litigation “understood
their suit to be on behalf of absent [parties].” Id., at 802.
In these circumstances, we held, the application of claim
preclusion was inconsistent with “the due process of law
guaranteed by the Fourteenth Amendment.” Id., at 797.
   The D. C. Circuit stated, without elaboration, that it did
not “read Richards to hold a nonparty . . . adequately
represented only if special procedures were followed [to
protect the nonparty] or the party to the prior suit under-
stood it was representing the nonparty.” 490 F. 3d, at 971.
As the D. C. Circuit saw this case, Herrick adequately
represented Taylor for two principal reasons: Herrick had
a strong incentive to litigate; and Taylor later hired Her-
rick’s lawyer, suggesting Taylor’s “satisfaction with the
attorney’s performance in the prior case.” Id., at 975.
   The D. C. Circuit misapprehended Richards. As just
recounted, our holding that the Alabama Supreme Court’s
                 Cite as: 553 U. S. ____ (2008)           15

                     Opinion of the Court

application of res judicata to nonparties violated due
process turned on the lack of either special procedures to
protect the nonparties’ interests or an understanding by
the concerned parties that the first suit was brought in a
representative capacity. See Richards, 517 U. S., at 801–
802. Richards thus established that representation is
“adequate” for purposes of nonparty preclusion only if (at a
minimum) one of these two circumstances is present.
  We restated Richards’ core holding in South Central
Bell Telephone Co. v. Alabama, 526 U. S. 160 (1999). In
that case, as in Richards, the Alabama courts had held
that a judgment rejecting a challenge to a tax by one
group of taxpayers barred a subsequent suit by a different
taxpayer. See 526 U. S., at 164–165. In South Central
Bell, however, the nonparty had notice of the original suit
and engaged one of the lawyers earlier employed by the
original plaintiffs. See id., at 167–168. Under the D. C.
Circuit’s decision in Taylor’s case, these factors apparently
would have sufficed to establish adequate representation.
See 490 F. 3d, at 973–975. Yet South Central Bell held
that the application of res judicata in that case violated
due process. Our inquiry came to an end when we deter-
mined that the original plaintiffs had not understood
themselves to be acting in a representative capacity and
that there had been no special procedures to safeguard the
interests of absentees. See 526 U. S., at 168.
  Our decisions recognizing that a nonparty may be bound
by a judgment if she was adequately represented by a
party to the earlier suit thus provide no support for the
D. C. Circuit’s broad theory of virtual representation.
                              B
  Fairchild and the FAA do not argue that the D. C. Cir-
cuit’s virtual representation doctrine fits within any of the
recognized grounds for nonparty preclusion. Rather, they
ask us to abandon the attempt to delineate discrete
16                      TAYLOR v. STURGELL

                          Opinion of the Court

grounds and clear rules altogether. Preclusion is in order,
they contend, whenever “the relationship between a party
and a non-party is ‘close enough’ to bring the second liti-
gant within the judgment.” Brief for Respondent Fairchild
20. See also Brief for Respondent FAA 22–24. Courts
should make the “close enough” determination, they urge,
through a “heavily fact-driven” and “equitable” inquiry.
Brief for Respondent Fairchild 20. See also Brief for Re-
spondent FAA 22 (“there is no clear test” for nonparty
preclusion; rather, an “equitable and fact-intensive” in-
quiry is demanded (internal quotation marks omitted)).
Only this sort of diffuse balancing, Fairchild and the FAA
argue, can account for all of the situations in which non-
party preclusion is appropriate.
  We reject this argument for three reasons. First, our
decisions emphasize the fundamental nature of the gen-
eral rule that a litigant is not bound by a judgment to
which she was not a party. See, e.g., Richards, 517 U. S.,
at 798–799; Martin, 490 U. S., at 761–762. Accordingly,
we have endeavored to delineate discrete exceptions that
apply in “limited circumstances.” Id., at 762, n. 2. Re-
spondents’ amorphous balancing test is at odds with the
constrained approach to nonparty preclusion our decisions
advance.
  Resisting this reading of our precedents, respondents
call up three decisions they view as supportive of the
approach they espouse. Fairchild quotes our statement in
Coryell v. Phipps, 317 U. S. 406, 411 (1943), that privity
“turns on the facts of particular cases.” See Brief for
Respondent Fairchild 20. That observation, however,
scarcely implies that privity is governed by a diffuse bal-
ancing test.9 Fairchild also cites Blonder-Tongue Labora-
——————
  9 Moreover, Coryell interpreted the term “privity” not in the context of

res judicata, but as used in a statute governing shipowner liability. See
Coryell v. Phipps, 317 U. S. 406, 407–408, and n. 1 (1943). And we
                     Cite as: 553 U. S. ____ (2008)                   17

                         Opinion of the Court

tories, Inc. v. University of Ill. Foundation, 402 U. S. 313,
334 (1971), which stated that estoppel questions turn on
“the trial courts’ sense of justice and equity.” See Brief for
Respondent Fairchild 20. This passing statement, how-
ever, was not made with nonparty preclusion in mind; it
appeared in a discussion recognizing district courts’ dis-
cretion to limit the use of issue preclusion against persons
who were parties to a judgment. See Blonder-Tongue, 402
U. S., at 334.
  The FAA relies on United States v. Des Moines Valley R.
Co., 84 F. 40 (CA8 1897), an opinion we quoted with ap-
proval in Schendel, 270 U. S., at 619–620. Des Moines
Valley was a quiet title action in which the named plaintiff
was the United States. The Government, however, had
“no interest in the land” and had “simply permitted [the
landowner] to use its name as the nominal plaintiff.” 84
F., at 42. The suit was therefore barred, the appeals court
held, by an earlier judgment against the landowner. As
the court explained: “[W]here the government lends its
name as a plaintiff . . . to enable one private person to
maintain a suit against another,” the government is “sub-
ject to the same defenses which exist . . . against the real
party in interest.” Id., at 43. Des Moines Valley, the FAA
contended at oral argument, demonstrates that it is some-
times appropriate to bind a nonparty in circumstances
that do not fit within any of the established grounds for
nonparty preclusion. See Tr. of Oral Arg. 31–33. Properly
understood, however, Des Moines Valley is simply an
application of the fifth basis for nonparty preclusion de-
scribed above: A party may not use a representative or
agent to relitigate an adverse judgment. See supra, at 12–


—————— 

made the statement Fairchild quotes in explaining why it was appro-
priate to defer to the findings of the lower courts, not as a comment on

the substantive rules of privity. See id., at 411. 

18                      TAYLOR v. STURGELL

                          Opinion of the Court

13.10 We thus find no support in our precedents for the
lax approach to nonparty preclusion advocated by
respondents.
   Our second reason for rejecting a broad doctrine of
virtual representation rests on the limitations attending
nonparty preclusion based on adequate representation. A
party’s representation of a nonparty is “adequate” for
preclusion purposes only if, at a minimum: (1) the inter-
ests of the nonparty and her representative are aligned,
see Hansberry, 311 U. S., at 43; and (2) either the party
understood herself to be acting in a representative capac-
ity or the original court took care to protect the interests of
the nonparty, see Richards, 517 U. S., at 801–802; supra,
at 14–15. In addition, adequate representation sometimes
requires (3) notice of the original suit to the persons al-
leged to have been represented, see Richards, 517 U. S., at
801.11 In the class-action context, these limitations are
implemented by the procedural safeguards contained in
Federal Rule of Civil Procedure 23.
——————
   10 The FAA urges that there was no agency relationship between the

landowner and the United States because the landowner did not control
the U. S. Attorney’s conduct of the suit. See Tr. of Oral Arg. 33. That
point is debatable. See United States v. Des Moines Valley R. Co., 84 F.
40, 42–43 (CA8 1897) (the United States was only a “nominal plaintiff”;
it merely “len[t]” its name to the landowner). But even if the FAA is
correct about agency, the United States plainly litigated as the land-
owner’s designated representative. See id., at 42 (“The bill does not
attempt to conceal the fact that . . . its real purpose is to champion the
cause of [the landowner] . . . .”). See also Chicago, R. I. & P. R. Co. v.
Schendel, 270 U. S. 611, 618–620 (1926) (classifying Des Moines Valley
with other cases of preclusion based on representation).
   11 Richards suggested that notice is required in some representative

suits, e.g., class actions seeking monetary relief. See 517 U. S., at 801
(citing Hansberry v. Lee, 311 U. S. 32, 40 (1940), Eisen v. Carlisle &
Jacquelin, 417 U. S. 156, 177 (1974), and Mullane v. Central Hanover
Bank & Trust Co., 339 U. S. 306, 319 (1950)). But we assumed without
deciding that a lack of notice might be overcome in some circumstances.
See Richards, 517 U. S., at 801.
                  Cite as: 553 U. S. ____ (2008)           19

                      Opinion of the Court

   An expansive doctrine of virtual representation, how-
ever, would “recogniz[e], in effect, a common-law kind of
class action.” Tice, 162 F. 3d, at 972 (internal quotation
marks omitted). That is, virtual representation would
authorize preclusion based on identity of interests and
some kind of relationship between parties and nonparties,
shorn of the procedural protections prescribed in Hans-
berry, Richards, and Rule 23. These protections, grounded
in due process, could be circumvented were we to approve
a virtual representation doctrine that allowed courts to
“create de facto class actions at will.” Tice, 162 F. 3d, at
973.
   Third, a diffuse balancing approach to nonparty preclu-
sion would likely create more headaches than it relieves.
Most obviously, it could significantly complicate the task
of district courts faced in the first instance with preclusion
questions. An all-things-considered balancing approach
might spark wide-ranging, time-consuming, and expensive
discovery tracking factors potentially relevant under
seven- or five-prong tests. And after the relevant facts are
established, district judges would be called upon to evalu-
ate them under a standard that provides no firm guidance.
See Tyus, 93 F. 3d, at 455 (conceding that “there is no
clear test for determining the applicability of” the virtual
representation doctrine announced in that case). Preclu-
sion doctrine, it should be recalled, is intended to reduce
the burden of litigation on courts and parties. Cf. Mon-
tana, 440 U. S., at 153–154. “In this area of the law,” we
agree, “ ‘crisp rules with sharp corners’ are preferable to a
round-about doctrine of opaque standards.” Bittinger v.
Tecumseh Products Co., 123 F. 3d 877, 881 (CA6 1997).
                             C
  Finally, relying on the Eighth Circuit’s decision in Tyus,
93 F. 3d, at 456, the FAA maintains that nonparty preclu-
sion should apply more broadly in “public-law” litigation
20                  TAYLOR v. STURGELL

                      Opinion of the Court

than in “private-law” controversies. To support this posi-
tion, the FAA offers two arguments. First, the FAA urges,
our decision in Richards acknowledges that, in certain
cases, the plaintiff has a reduced interest in controlling
the litigation “because of the public nature of the right at
issue.” Brief for Respondent FAA 28. When a taxpayer
challenges “an alleged misuse of public funds” or “other
public action,” we observed in Richards, the suit “has only
an indirect impact on [the plaintiff’s] interests.” 517 U. S.,
at 803. In actions of this character, the Court said, “we
may assume that the States have wide latitude to estab-
lish procedures . . . to limit the number of judicial proceed-
ings that may be entertained.” Ibid.
   Taylor’s FOIA action falls within the category described
in Richards, the FAA contends, because “the duty to dis-
close under FOIA is owed to the public generally.” See
Brief for Respondent FAA 34. The opening sentence of
FOIA, it is true, states that agencies “shall make [infor-
mation] available to the public.” 5 U. S. C. §552(a) (2006
ed.). Equally true, we have several times said that FOIA
vindicates a “public” interest. E.g., National Archives and
Records Admin. v. Favish, 541 U. S. 157, 172 (2004). The
Act, however, instructs agencies receiving FOIA requests
to make the information available not to the public at
large, but rather to the “person” making the request.
§552(a)(3)(A). See also §552(a)(3)(B) (“In making any
record available to a person under this paragraph, an
agency shall provide the record in any [readily reproduci-
ble] form or format requested by the person . . . .” (empha-
sis added)); Brief for National Security Archive et al. as
Amici Curiae 10 (“Government agencies do not systemati-
cally make released records available to the general pub-
lic.”). Thus, in contrast to the public-law litigation con-
templated in Richards, a successful FOIA action results in
a grant of relief to the individual plaintiff, not a decree
benefiting the public at large.
                    Cite as: 553 U. S. ____ (2008)                 21

                        Opinion of the Court

   Furthermore, we said in Richards only that, for the type
of public-law claims there envisioned, States are free to
adopt procedures limiting repetitive litigation. See 517
U. S., at 803. In this regard, we referred to instances in
which the first judgment foreclosed successive litigation by
other plaintiffs because, “under state law, [the suit] could
be brought only on behalf of the public at large.” Id., at
804.12 Richards spoke of state legislation, but it appears
equally evident that Congress, in providing for actions
vindicating a public interest, may “limit the number of
judicial proceedings that may be entertained.” Id., at 803.
It hardly follows, however, that this Court should pro-
scribe or confine successive FOIA suits by different re-
questers. Indeed, Congress’ provision for FOIA suits with
no statutory constraint on successive actions counsels
against judicial imposition of constraints through extraor-
dinary application of the common law of preclusion.
   The FAA next argues that “the threat of vexatious
litigation is heightened” in public-law cases because “the
number of plaintiffs with standing is potentially limitless.”
Brief for Respondent FAA 28 (internal quotation marks
omitted). FOIA does allow “any person” whose request is
denied to resort to federal court for review of the agency’s
determination. 5 U. S. C. §552(a)(3)(A), (4)(B) (2006 ed.).
Thus it is theoretically possible that several persons could
coordinate to mount a series of repetitive lawsuits.
   But we are not convinced that this risk justifies depar-
ture from the usual rules governing nonparty preclusion.
First, stare decisis will allow courts swiftly to dispose of
repetitive suits brought in the same circuit. Second, even
when stare decisis is not dispositive, “the human tendency
not to waste money will deter the bringing of suits based
——————
  12 Nonparty preclusion in such cases ranks under the sixth exception

described above: special statutory schemes that expressly limit subse-
quent suits. See supra, at 13.
22                  TAYLOR v. STURGELL

                     Opinion of the Court

on claims or issues that have already been adversely
determined against others.” Shapiro 97. This intuition
seems to be borne out by experience: The FAA has not
called our attention to any instances of abusive FOIA suits
in the Circuits that reject the virtual-representation the-
ory respondents advocate here.
                             IV
   For the foregoing reasons, we disapprove the theory of
virtual representation on which the decision below rested.
The preclusive effects of a judgment in a federal-question
case decided by a federal court should instead be deter-
mined according to the established grounds for nonparty
preclusion described in this opinion. See Part II–B, supra.
   Although references to “virtual representation” have
proliferated in the lower courts, our decision is unlikely to
occasion any great shift in actual practice. Many opinions
use the term “virtual representation” in reaching results
at least arguably defensible on established grounds. See
18A Wright & Miller §4457, pp. 535–539, and n. 38 (col-
lecting cases). In these cases, dropping the “virtual repre-
sentation” label would lead to clearer analysis with little,
if any, change in outcomes. See Tice, 162 F. 3d, at 971.
(“[T]he term ‘virtual representation’ has cast more shad-
ows than light on the problem [of nonparty preclusion].”).
   In some cases, however, lower courts have relied on
virtual representation to extend nonparty preclusion
beyond the latter doctrine’s proper bounds. We now turn
back to Taylor’s action to determine whether his suit is
such a case, or whether the result reached by the courts
below can be justified on one of the recognized grounds for
nonparty preclusion.
                            A
  It is uncontested that four of the six grounds for non-
party preclusion have no application here: There is no
                 Cite as: 553 U. S. ____ (2008)           23

                     Opinion of the Court

indication that Taylor agreed to be bound by Herrick’s
litigation, that Taylor and Herrick have any legal rela-
tionship, that Taylor exercised any control over Herrick’s
suit, or that this suit implicates any special statutory
scheme limiting relitigation. Neither the FAA nor Fair-
child contends otherwise.
   It is equally clear that preclusion cannot be justified on
the theory that Taylor was adequately represented in
Herrick’s suit. Nothing in the record indicates that Her-
rick understood himself to be suing on Taylor’s behalf,
that Taylor even knew of Herrick’s suit, or that the Wyo-
ming District Court took special care to protect Taylor’s
interests. Under our pathmarking precedent, therefore,
Herrick’s representation was not “adequate.” See Rich-
ards, 517 U. S., at 801–802.
   That leaves only the fifth category: 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. Taylor is not Herrick’s legal represen-
tative and he has not purported to sue in a representative
capacity. He concedes, however, that preclusion would be
appropriate if respondents could demonstrate that he is
acting as Herrick’s “undisclosed agen[t].” Brief for Peti-
tioner 23, n. 4. See also id., at 24, n. 5.
   Respondents argue here, as they did below, that Taylor’s
suit is a collusive attempt to relitigate Herrick’s action.
See Brief for Respondent Fairchild 32, and n. 18; Brief for
Respondent FAA 18–19, 33, 39. The D. C. Circuit consid-
ered a similar question in addressing the “tactical maneu-
vering” prong of its virtual representation test. See 490
F. 3d, at 976. The Court of Appeals did not, however, treat
the issue as one of agency, and it expressly declined to
reach any definitive conclusions due to “the ambiguity of
the facts.” Ibid. We therefore remand to give the courts
below an opportunity to determine whether Taylor, in
pursuing the instant FOIA suit, is acting as Herrick’s
24                      TAYLOR v. STURGELL

                          Opinion of the Court

agent. Taylor concedes that such a remand is appropriate.
See Tr. of Oral Arg. 56–57.
   We have never defined the showing required to establish
that a nonparty to a prior adjudication has become a
litigating agent for a party to the earlier case. Because
the issue has not been briefed in any detail, we do not
discuss the matter elaboratively here. We note, however,
that courts should be cautious about finding preclusion on
this basis. A mere whiff of “tactical maneuvering” will not
suffice; instead, principles of agency law are suggestive.
They indicate that preclusion is appropriate only if the
putative agent’s conduct of the suit is subject to the control
of the party who is bound by the prior adjudication. See 1
Restatement (Second) of Agency §14, p. 60 (1957) (“A
principal has the right to control the conduct of the agent
with respect to matters entrusted to him.”).13
                             B
  On remand, Fairchild suggests, Taylor should bear the
burden of proving he is not acting as Herrick’s agent.
When a defendant points to evidence establishing a close
relationship between successive litigants, Fairchild main-
tains, “the burden [should] shif[t] to the second litigant to
submit evidence refuting the charge” of agency. Brief for
Respondent Fairchild 27–28. Fairchild justifies this pro-
posed burden-shift on the ground that “it is unlikely an
——————
  13 Our  decision in Montana v. United States, 440 U. S. 147 (1979), also
suggests a “control” test for agency. In that case, we held that the
United States was barred from bringing a suit because it had controlled
a prior unsuccessful action filed by a federal contractor. See id., at 155.
We see no reason why preclusion based on a lesser showing would have
been appropriate if the order of the two actions had been switched—
that is, if the United States had brought the first suit itself, and then
sought to relitigate the same claim through the contractor. See
Schendel, 270 U. S., at 618 (“[I]f, in legal contemplation, there is
identity of parties” when two suits are brought in one order, “there
must be like identity” when the order is reversed.).
                 Cite as: 553 U. S. ____ (2008)           25

                     Opinion of the Court

opposing party will have access to direct evidence of collu-
sion.” Id., at 28, n. 14.
   We reject Fairchild’s suggestion. Claim preclusion, like
issue preclusion, is an affirmative defense. See Fed. Rule
Civ. Proc. 8(c); Blonder-Tongue, 402 U. S., at 350. Ordi-
narily, it is incumbent on the defendant to plead and prove
such a defense, see Jones v. Bock, 549 U. S. 199, 204
(2007), and we have never recognized claim preclusion as
an exception to that general rule, see 18 Wright & Miller
§4405, p. 83 (“[A] party asserting preclusion must carry
the burden of establishing all necessary elements.”). We
acknowledge that direct evidence justifying nonparty
preclusion is often in the hands of plaintiffs rather than
defendants. See, e.g., Montana, 440 U. S., at 155 (listing
evidence of control over a prior suit). But “[v]ery often one
must plead and prove matters as to which his adversary
has superior access to the proof.” 2 K. Broun, McCormick
on Evidence §337, p. 475 (6th ed. 2006). In these situa-
tions, targeted interrogatories or deposition questions can
reduce the information disparity. We see no greater cause
here than in other matters of affirmative defense to dis-
turb the traditional allocation of the proof burden.
                       *     *     *
  For the reasons stated, the judgment of the United
States Court of Appeals for the District of Columbia Cir-
cuit is vacated, and the case is remanded for further pro-
ceedings consistent with this opinion.
                                           It is so ordered.