Taylor v. Sturgell

(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

Cite as: 553 U. S. ____ (2008) 5

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.