OPINION OF THE COURT TAYLOR V. STURGELL 553 U. S. ____ (2008) 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 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 (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
adequately 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 representation”
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
Taylor filed a lawsuit under the Freedom of Information Act seeking
certain documents from the Federal Aviation Administration. Greg
Herrick, Taylor’s friend, had previously 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
precluded 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 requested
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 requested 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 records. 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 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 contained 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 predecessor, the Civil Aeronautics Authority, detailed
specifications and other technical data about the plane. Hundreds
of pages of documents produced by FEAC in the certification process
remain in the FAA’s records. The FAA denied Herrick’s request,
however, upon finding that the documents 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 appeal,
Herrick urged that FEAC and its successors had waived any
trade-secret protection. The FAA thereupon contacted FEAC’s
corporate successor, respondent Fairchild 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 Authority. 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 regarded 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
alternative 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
District 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 District
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 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,[ Footnote 1 ] the
District Court in D. C. concluded that Taylor’s suit was
barred by claim preclusion; accordingly, it granted summary
judgment 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 representation, 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
Circuit’s test, but are not prerequisites: (1) a “close
relationship” between the present party and a party to the judgment
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 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 observed, “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
between 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
litigation; 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 Herrick 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 District 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 representation. 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 approach, which “treats a party as a virtual
representative 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
representative,” “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 interests,
the court emphasized that Taylor and Herrick sought the same
result—release of the F–45 documents. Moreover, the D. C.
Circuit observed, Herrick owned an F–45 airplane, and therefore had
“if anything, a stronger incentive to litigate” than Taylor, who
had only a “general interest in public disclosure and the
preservation of antique 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 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 attorney’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”; furthermore,
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]”).[ Footnote 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.”[ Footnote
3 ]

															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 developing “uniform federal
rule[s]” of res judicata, which this Court has ultimate authority
to determine and declare. Id. , at 508.[ Footnote 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 virtual
representation.

															A

															   The preclusive effect of a
judgment is defined by claim preclusion and issue preclusion, which
are collectively referred to as “res judicata.”[ Footnote 5 ] Under the doctrine of claim
preclusion, a final judgment forecloses “successive litigation of
the very same claim, whether or not relitigation of the claim
raises the same issues as the earlier suit.” New 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
(internal 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.[ Footnote 6 ]

															   First, “[a] person who agrees to
be bound by the determination of issues in an action between others
is bound in accordance with the terms of his agreement.” 1
Restatement (Second) of Judgments §40, p. 390 (1980) (hereinafter
Restatement). For example, “if separate actions involving 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: Preclusion 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).[ Footnote 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
judgment. 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 preclusion by judgment.” 18A C. Wright, A.
Miller, & E. Cooper, Federal Practice and Procedure §4448, p.
329 (2d ed. 2002) (hereinafter Wright & Miller).[ Footnote 8 ]

															   Third, we have confirmed that, “in certain
limited circumstances,” 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. Richards , 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 “assume[d] control” over the litigation in which that judgment
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.
Preclusion is thus in order when a person who did not participate
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 addressed the issue directly, it also seems clear that
preclusion 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 proceedings, 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. Decisions of these courts, however, have been far from
consistent. 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
representation 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 presented three arguments in support of an
expansive doctrine of virtual representation. We find none of them
persuasive.

															A

															   The D. C. Circuit purported
to ground its virtual representation doctrine in this Court’s
decisions stating 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. See 490 F. 3d, at
970–971. But the D. C. Circuit’s definition of “adequate
representation” 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
understood 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 Herrick’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 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 determined 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. Circuit’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
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 litigant 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 Respondent FAA 22 (“there is no clear test” for nonparty
preclusion; rather, an “equitable and fact-intensive” inquiry 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 nonparty preclusion is appropriate.

															   We reject this argument for three
reasons. First, our decisions emphasize the fundamental nature of
the general 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. Respondents’ 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 balancing
test.[ Footnote 9 ] Fairchild
also cites Blonder-Tongue Laboratories, 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, however, was not made with
nonparty preclusion in mind; it appeared in a discussion
recognizing district courts’ discretion 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 approval 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 “subject 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 sometimes 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 described above: A party may
not use a representative or agent to relitigate an adverse
judgment. See supra , at 12–13.[ Footnote 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 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 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 alleged to have been represented, see Richards , 517 U. S., at 801.[ Footnote 11 ] In the class-action context, these
limitations are implemented by the procedural safeguards contained
in Federal Rule of Civil Procedure 23.

															   An expansive doctrine of virtual
representation, however, 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 Hansberry , 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 preclusion 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 evaluate 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). Preclusion
doctrine, it should be recalled, is intended to reduce the burden
of litigation on courts and parties. Cf. Montana , 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 preclusion should apply more broadly in
“public-law” litigation than in “private-law” controversies. To
support this position, 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 establish procedures … to limit the
number of judicial proceedings that may be entertained.” Ibid. Taylor’s FOIA action falls
within the category described in Richards , the FAA contends,
because “the duty to disclose 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 [information]
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 reproducible] form or
format requested by the person … .” (emphasis
added)); Brief for National Security Archive et al. as Amici Curiae 10 (“Government agencies do not
systematically make released records available to the general
public.”). Thus, in contrast to the public-law litigation
contemplated in Richards , a successful FOIA action results
in a grant of relief to the individual plaintiff, not a decree
benefiting the public at large.

															   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.[ Footnote 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 proscribe
or confine successive FOIA suits by different requesters. Indeed,
Congress’ provision for FOIA suits with no statutory constraint on
successive actions counsels against judicial imposition of
constraints through extraordinary 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 departure 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
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 theory 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
determined 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 (collecting cases). In
these cases, dropping the “virtual representation” 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 shadows 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 nonparty preclusion have no application here:
There is no indication that Taylor agreed to be bound by Herrick’s
litigation, that Taylor and Herrick have any legal relationship,
that Taylor exercised any control over Herrick’s suit, or that this
suit implicates any special statutory scheme limiting relitigation.
Neither the FAA nor Fairchild 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 Herrick understood himself to be suing on Taylor’s
behalf, that Taylor even knew of Herrick’s suit, or that the
Wyoming District Court took special care to protect Taylor’s
interests. Under our pathmarking precedent, therefore, Herrick’s
representation was not “adequate.” See Richards , 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 representative
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 Petitioner 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 considered a
similar question in addressing the “tactical maneuvering” 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 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.”).[ Footnote 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
maintains, “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 proposed
burden-shift on the ground that “it is unlikely an opposing party
will have access to direct evidence of collusion.” 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. Ordinarily, 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 situations, targeted interrogatories or deposition
questions can reduce the information disparity. We see no greater
cause here than in other matters of affirmative defense to disturb
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 Circuit is vacated, and the case is remanded for further
proceedings consistent with this opinion.

															It is so ordered. Footnote 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). Footnote 2 The D. C. Circuit did not discuss the
District Court’s distinction between public-law and private-law
claims. Footnote 3 The Ninth Circuit applies a five-factor test
similar to the D. C. Circuit’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 existence 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). Footnote 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). Footnote 5 These terms have replaced a more confusing
lexicon. Claim preclusion 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). Footnote 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: 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. Footnote 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. Footnote 8 The substantive legal relationships
justifying preclusion are sometimes collectively referred to as
“privity.” See, e.g., Richards v. Jefferson
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. Footnote 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 made the statement Fairchild quotes in explaining
why it was appropriate to defer to the findings of the lower
courts, not as a comment on the substantive rules of privity. See id. , at 411. Footnote 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 landowner’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). Footnote 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 . Footnote 12 Nonparty preclusion in such cases ranks
under the sixth exception described above: special statutory
schemes that expressly limit subsequent suits. See supra , at
13. Footnote 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.).

Summary: In Taylor v. Sturgell, the Supreme Court ruled that nonparties cannot be bound by a judgment in a litigation where they were not designated as parties or served with process, rejecting the "virtual representation" exception that had been adopted by some lower courts. The case involved a Freedom of Information Act (FOIA) request by Brent Taylor, which was denied due to a previous unsuccessful FOIA request by his friend, Greg Herrick, for the same records. The Court held that Taylor's suit was not precluded by the judgment against Herrick, as there was no legal relationship or evidence of control, financing, or participation between the two men. The Court emphasized the importance of ensuring that individuals have their day in court and that preclusion of nonparties should be limited to specific exceptions, such as class actions or special statutory schemes.