source: Caselaw Access Project

author: Justice Kennedy Justice Stevens, Justice Souter,

license: Public Domain

text:
    REPUBLIC OF PHILIPPINES et al. v. PIMENTEL, Temporary Administrator of ESTATE OF PIMENTEL, DECEASED, et al.
    CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
    No. 06-1204.
    Argued March 17, 2008
    Decided June 12, 2008

      Charles A. Rothfeld argued the cause for petitioners. With him on the briefs were Stephen V. Bomse, E. Joshua Rosenkranz, Adam J. Gromfin, Kenneth S. Geller, and David M. Gossett.

      Deputy Solicitor General Kneedler argued the cause for the United States as amicus curiae urging reversal. With him on the brief were former Solicitor General Clement, Acting Assistant Attorney General Bucholtz, Douglas Hallward-Driemeier, and Michael S. Raab.

      Robert A. Swift argued the cause for respondents. With him on the brief for respondent Mariano J. Pimentel were Craig W. Hillwig, Sherry P. Broder, and Jon M. Van Dyke.

      Briefs of amici curiae urging affirmance were filed for Philippine Human Rights Groups by Mark S. Davis; and for Professors of International Law by William J. Aceves.

        A. Robert Pietrzak, Daniel A. McLaughlin, Carter G. Phillips, and Daniel R. Spector filed a brief for Merrill Lynch, Pierce, Fenner & Smith Inc. as amicus curiae.

   Justice Kennedy

delivered the opinion of the Court.

This case turns on the interpretation and proper application of Rule 19 of the Federal Rules of Civil Procedure and requires us to address the Rule’s operation in the context of foreign sovereign immunity.

This interpleader action was commenced to determine the ownership of property allegedly stolen by Ferdinand Marcos when he was the President of the Republic of the Philippines. Two entities named in the suit invoked sovereign immunity. They are the Republic of the Philippines and the Philippine Presidential Commission on Good Governance, referred to in turn as the Republic and the Commission. They were dismissed, but the interpleader action proceeded to judgment over their objection. Together with two parties who remained in the suit, the Republic and the Commission now insist it was error to allow the litigation to proceed. Under Rule 19, they contend, the action should have been dismissed once it became clear they could not be joined as parties without their consent.

The United States Court of Appeals for the Ninth Circuit, agreeing with the District Court, held the action could proceed without the Republic and the Commission as parties. Among the reasons the Court of Appeals gave was that the absent, sovereign entities would not prevail on their claims. We conclude the Court of Appeals gave insufficient weight to the foreign sovereign status of the Republic and the Commission, and that the court further erred in reaching and discounting the merits of their claims.

I

A

When the opinion of the Court of Appeals is consulted, the reader will find its quotations from Rule 19 do not accord with its text as set out here; for after the case was in the Court of Appeals and before it came here, the text of the Rule changed. The Rules Committee advised the changes were stylistic only, see Advisory Committee’s Notes on 2007 Amendment to Fed. Rule Civ. Proc. 19, 28 U. S. C., p. 826 (2006 ed., Supp. I); and we agree. These are the three relevant stylistic changes. First, the word “required” replaced the word “necessary” in subparagraph (a). Second, the 1966 Rule set out factors in longer clauses and the 2007 Rule sets out the factors affecting joinder in separate lettered headings. Third, the word “indispensable,” which had remained as a remnant of the pre-1966 Rule, is altogether deleted from the current text. Though the word “indispensable” had a lesser place in the 1966 Rule, it still had the latent potential to mislead.

As the substance and operation of the Rule both pre- and post-2007 are unchanged, we will refer to the present, revised version. The pre-2007 version is printed in the appendix to this opinion, infra, at 873-875. The current Rule states, in relevant part, as follows:

“Rule 19. Required Joinder of Parties
“(a) Persons Required to Be Joined if Feasible.
“(1) Required Party. A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a party if:
“(A) in that person’s absence, the court cannot accord complete relief among existing parties; or
“(B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person’s absence may:
“(i) as a practical matter impair or impede the person’s ability to protect the interest; or
“(ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.
“(2) Joinder by Court Order. If a person has not been joined as required, the court must order that the person be made a party. A person who refuses to join as a plaintiff may be made either a defendant or, in a proper case, an involuntary plaintiff.
“(3) Venue. If a joined party objects to venue and the joinder would make venue improper, the court must dismiss that party.
“(b) When Joinder Is Not Feasible. If a person who is required to be joined if feasible cannot be joined, the court must determine whether, in equity and good conscience, the action should proceed among the existing parties or should be dismissed. The factors for the court to consider include:
“(1) the extent to which a judgment rendered in the person’s absence might prejudice that person or the existing parties;
“(2) the extent to which any prejudice could be lessened or avoided by:
“(A) protective provisions in the judgment;
“(B) shaping the relief; or “(C) other measures;
“(3) whether a judgment rendered in the person’s absence would be adequate; and
“(4) whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder.” Fed. Rules Civ. Proc. 19(a)-(b), 28 U. S. C.

See also Rule 19(c) (imposing pleading requirements); Rule 19(d) (creating exception for class actions).

B

In 1972, Ferdinand Marcos, then President of the Republic, incorporated Arelma, S. A. (Arelma), under Panamanian law. Around the same time, Arelma opened a brokerage account with Merrill Lynch, Pierce, Fenner & Smith Inc. (Merrill Lynch) in New York, in which it deposited $2 million. As of the year 2000, the account had grown to approximately $35 million.

Alleged crimes and misfeasance by Marcos during his presidency became the subject of worldwide attention and protest. A class action by and on behalf of some 9,539 of his human rights victims was filed against Marcos and his estate, among others. The class action was tried in the United States District Court for the District of Hawaii and resulted in a nearly $2 billion judgment for the class. See Hilao v. Estate of Marcos, 103 F. 3d 767 (CA9 1996). We refer to that litigation as the Pimentel case and to its class members as the Pimentel class. In a related action, the Estate of Roger Roxas and Golden Budha [sic] Corporation (the Roxas claimants) claim a right to execute against the assets to satisfy their own judgment against Marcos’ widow, Imelda Marcos. See Roxas v. Marcos, 89 Haw. 91, 113-115, 969 P. 2d 1209, 1231-1233 (1998).

The Pimentel class claims a right to enforce its judgment by attaching the Arelma assets held by Merrill Lynch. The Republic and the Commission claim a right to the assets under a 1955 Philippine law providing that property derived from the misuse of public office is forfeited to the Republic from the moment of misappropriation. See An Act Declaring Forfeiture in Favor of the State Any Property Found To Have Been Unlawfully Acquired by Any Public Officer or Employee and Providing for the Proceedings Therefor, Rep. Act No. 1379, 51:9 O. G. 4457 (June 18, 1955).

After Marcos fled the Philippines in 1986, the Commission was created to recover any property he wrongfully took. Almost immediately the Commission asked the Swiss Government for assistance in recovering assets — including shares in Arelma — that Marcos had moved to Switzerland. In compliance the Swiss Government froze certain assets and, in 1990, that freeze was upheld by the Swiss Federal Supreme Court. In 1991, the Commission asked the Sandiganbayan, a Philippine court of special jurisdiction over corruption cases, to declare forfeited to the Republic any property Marcos had obtained through misuse of his office. That litigation is still pending in the Sandiganbayan.

The Swiss assets were transferred to an escrow account set up by the Commission at the Philippine National Bank (PNB), pending the Sandiganbayan’s decision as to their rightful owner. The Republic and the Commission requested that Merrill Lynch follow the same course and transfer the Arelma assets to an escrow account at PNB. Merrill Lynch did not do so. Facing claims from various Marcos creditors, including the Pimentel class, Merrill Lynch instead filed an interpleader action under 28 U. S. C. § 1335. The named defendants in the interpleader action were, among others, the Republic and the Commission, Arelma, PNB, and the Pimentel class (the respondents here).

The Pimentel case had been tried as a class action before Judge Manuel Real of the United States District Court for the Central District of California, who was sitting by designation in the District of Hawaii after the Judicial Panel on Multidistrict Litigation consolidated the various human rights complaints against Marcos in that court. See Hilao, supra, at 771. Judge Real directed Merrill Lynch to file the interpleader action in the District of Hawaii, and he presided over the matter.

After being named as defendants in the interpleader action, the Republic and the Commission asserted sovereign immunity under the Foreign Sovereign Immunities Act of 1976 (FSIA), 28 U. S. C. § 1604. They moved to dismiss pursuant to Rule 19(b), based on the premise that the action could not proceed without them. Arelma and PNB also moved to dismiss pursuant to Rule 19(b). Without addressing whether they were entitled to sovereign immunity, Judge Real initially rejected the request by the Republic and the Commission to dismiss the interpleader action. They appealed, and the Court of Appeals reversed. It held the Republic and the Commission are entitled to sovereign immunity and that under Rule 19(a) they are required parties (or “necessary” parties under the old terminology). See In re Republic of the Philippines, 309 F. 3d 1143, 1149-1152 (CA9 2002). The Court of Appeals entered a stay pending the outcome of the litigation in the Sandiganbayan over the Marcos assets. See id., at 1152-1153.

After concluding that the pending litigation in the Sandiganbayan could not determine entitlement to the Arelma assets, Judge Real vacated the stay, allowed the action to proceed, and awarded the assets to the Pimentel class. A week later, in the case initiated before the Sandiganbayan in 1991, the Republic asked that court to declare the Arelma assets forfeited, arguing the matter was ripe for decision. The Sandiganbayan has not yet ruled.

In the interpleader case the Republic, the Commission, Arelma, and PNB appealed the District Court’s judgment in favor of the Pimentel claimants. This time the Court of Appeals affirmed. See Merrill Lynch, Pierce, Fenner & Smith v. ENC Cory., 464 F. 3d 885 (CA9 2006). Dismissal of the interpleader suit, it held, was not warranted under Rule 19(b) because, though the Republic and the Commission were required (“necessary”) parties under Rule 19(a), their claim had so little likelihood of success on the merits that the interpleader action could proceed without them. One of the reasons the court gave was that any action commenced by the Republic and the Commission to recover the assets would be barred by New York’s 6-year statute of limitations for claims involving the misappropriation of public property. See N. Y. Civ. Prac. Law Ann. §213 (West Supp. 2008). The court thus found it unnecessary to consider whether any prejudice to the Republic and the Commission might be lessened by some form of judgment or interim decree in the interpleader action. The court also considered the failure of the Republic and the Commission to obtain a judgment in the Sandiganbayan — despite the Arelma share certificates having been located and held in escrow at PNB since 1997-1998 — to be an equitable consideration counseling against dismissal of the interpleader suit. The court further found it relevant that allowing the interpleader case to proceed would serve the interests of the Pimentel class, which, at this point, likely has no other available forum in which to enforce its judgment against property belonging to Marcos.

This Court granted certiorari. See 552 U. S. 1061 (2007).

II

We begin with the question we asked the parties to address when we granted certiorari: Whether the Republic and the Commission, having been dismissed from the inter-pleader action based on their successful assertion of sovereign immunity, had the right to appeal the District Court’s determination under Rule 19 that the action could proceed in their absence; and whether they have the right to seek this Court’s review of the Court of Appeals’ judgment affirming the District Court. See ibid.

Respondents contend that the Republic and the Commission were not proper parties in the Court of Appeals when it reviewed the District Court’s judgment allowing the action to proceed without them; and, respondents continue, the Republic and the Commission are not proper parties in the instant proceeding before us. See Brief for Respondent Pimentel 21.

Without implying that respondents are correct in saying the Republic and the Commission could neither appeal nor become parties here, we conclude we need not rule on this point. Other parties before us, Arelma and PNB, also seek review of the Court of Appeals’ decision affirming the District Court. They, too, moved to dismiss the action under Rule 19(b), appealed from the denial of their motion, and are petitioners before this Court. As a general matter any party may move to dismiss an action under Rule 19(b). A court with proper jurisdiction may also consider sua sponte the absence of a required person and dismiss for failure to join. See, e. g., Minnesota v. Northern Securities Co., 184 U. S. 199, 235 (1902); see also Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U. S. 102, 111 (1968).

Respondents argue, however, that Arelma and PNB have no standing to raise before this Court the question whether the action may proceed in the absence of the Republic and the Commission. Arelma and PNB lost on the merits of their underlying claims to the interpleaded assets in both the District Court and the Court of Appeals. By failing to petition for certiorari on that merits ruling, respondents contend, Arelma and PNB abandoned any entitlement to the interpleaded assets and therefore lack a concrete stake in the outcome of further proceedings. We disagree. Dismissal of the action under Rule 19(b) would benefit Arelma and PNB by vacating the judgment denying them the interpleaded assets. A party that seeks to have a judgment vacated in its entirety on procedural grounds does not lose standing simply because the party does not petition for certiorari on the substance of the order.

Ill

We turn to the question whether the interpleader action could proceed in the District Court without the Republic and the Commission as parties.

Subdivision (a) of Rule 19 states the principles that determine when persons or entities must be joined in a suit. The Rule instructs that nonjoinder even of a required person does not always result in dismissal. Subdivision (a) opens by noting that it addresses joinder “if Feasible.” Where joinder is not feasible, the question whether the action should proceed turns on the factors outlined in subdivision (b). The considerations set forth in subdivision (b) are nonexclusive, as made clear by the introductory statement that “[t]he factors for the court to consider include.” Fed. Rule Civ. Proc. 19(b). The general direction is whether “in equity and good conscience, the action should proceed among the existing parties or should be dismissed.” Ibid. The design of the Rule, then, indicates that the determination whether to proceed will turn upon factors that are case specific, which is consistent with a Rule based on equitable considerations. This is also consistent with the fact that the determination of who may, or must, be parties to a suit has consequences for the persons and entities affected by the judgment; for the judicial system and its interest in the integrity of its processes and the respect accorded to its decrees; and for society and its concern for the fair and prompt resolution of disputes. See, e. g., Illinois Brick Co. v. Illinois, 481 U. S. 720, 737-739 (1977). For these reasons, the issue of joinder can be complex, and determinations are case specific. See, e. g., Provident Bank, supra, at 118-119.

Under the earlier Rules the term “indispensable party” might have implied a certain rigidity that would be in tension with this case-specific approach. The word “indispensable” had an unforgiving connotation that did not fit easily with a system that permits actions to proceed even when some persons who otherwise should be parties to the action cannot be joined. As the Court noted in Provident Bank, the use of “indispensable” in Rule 19 created the “verbal anomaly” of an “indispensable person who turns out to be dispensable after all.” 390 U. S., at 117, n. 12. Though the text has changed, the new Rule 19 has the same design and, to some extent, the same tension. Required persons may turn out not to be required for the action to proceed after all.

In all events it is clear that multiple factors must bear on the decision whether to proceed without a required person. This decision “must be based on factors varying with the different cases, some such factors being substantive, some procedural, some compelling by themselves, and some subject to balancing against opposing interests.” Id., at 119.

IV

We turn to Rule 19 as it relates to this case. The application of subdivision (a) of Rule 19 is not contested. The Republic and the Commission are required entities because “[w]ithout [them] as parties in this interpleader action, their interests in the subject matter are not protected.” In re Republic of Philippines, 309 F. 3d, at 1152; see Fed. Rule Civ. Proc. 19(a)(l)(B)(i). All parties appear to concede this. The disagreement instead centers around the application of subdivision (b), which addresses whether the action may proceed without the Republic and the Commission, given that the Rule requires them to be parties.

We have not addressed the standard of review for Rule 19(b) decisions. The case-specific inquiry that must be followed in applying the standards set forth in subdivision (b), including the direction to consider whether “in equity and good conscience” the case should proceed, implies some degree of deference to the district court. In this case, however, we find implicit in the District Court’s rulings, and explicit in the opinion of the Court of Appeals, errors of law that require reversal. Whatever the appropriate standard of review, a point we need not decide, the judgment could not stand. Cf. Koon v. United States, 518 U. S. 81, 99-100 (1996) (a court “by definition abuses its discretion when it makes an error of law”).

The Court of Appeals erred in not giving the necessary weight to the absent entities’ assertion of sovereign immunity. The court in effect decided the merits of the Republic and the Commission’s claims to the Arelma assets. Once it was recognized that those claims were not frivolous, it was error for the Court of Appeals to address them on their merits when the required entities had been granted sovereign immunity. The court’s consideration of the merits was itself an infringement on foreign sovereign immunity; and, in any event, its analysis was flawed. We discuss these errors first in the context of how they affected the Court of Appeals’ analysis under the first factor of Rule 19(b). We then explain that the outcome suggested by the first factor is confirmed by our analysis under the other provisions of Rule 19(b). The action may not proceed.

A

As to the first Rule 19(b) factor — the extent to which a judgment rendered in the person’s absence might prejudice that person or the existing parties, Fed. Rule Civ. Proc. 19(b)(1) — the judgment of the Court of Appeals is incorrect.

In considering whether the Republic and the Commission would be prejudiced if the action were to proceed in their absence, the Court of Appeals gave insufficient weight to their sovereign status. The doctrine of foreign sovereign immunity has been recognized since early in the history of our Nation. It is premised upon the “perfect equality and absolute independence of sovereigns, and th[e] common interest impelling them to mutual intercourse.” Schooner Exchange v. McFaddon, 7 Cranch 116, 137 (1812). The Court has observed that the doctrine is designed to “give foreign states and their instrumentalities some protection from the inconvenience of suit,” Dole Food Co. v. Patrickson, 538 U. S. 468, 479 (2003).

The privilege is codified by federal statute. FSIA, 28 U. S. C. §§ 1330, 1602-1611, provides that “a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in sections 1605 to 1607,” absent existing international agreements to the contrary. § 1604; see Verlinden B. V. v. Central Bank of Nigeria, 461 U. S. 480, 486-489 (1983) (explaining the history of the doctrine’s codification). Exceptions to the general principle of foreign sovereign immunity are contained in §§ 1605-1607 of the statute. They are inapplicable here, or at least the parties do not invoke them. Immunity in this case, then, is uncontested; and pursuant to the Court of Appeals’ earlier ruling on the issue, the District Court dismissed the Republic and the Commission from the action on this ground.

The District Court and the Court of Appeals failed to give full effect to sovereign immunity when they held the action could proceed without the Republic and the Commission. Giving full effect to sovereign immunity promotes the comity interests that have contributed to the development of the immunity doctrine. See, e. g., id., at 486 (“[F]oreign sovereign immunity is a matter of grace and comity”); National City Bank of N. Y. v. Republic of China, 348 U. S. 356, 362, and n. 7 (1955) (foreign sovereign immunity derives from “standards of public morality, fair dealing, reciprocal self-interest, and respect for the ‘power and dignity’ of the foreign sovereign” (citing Schooner Exchange, supra, at 136-137, 143-144)).

Comity and dignity interests take concrete form in this case. The claims of the Republic and the Commission arise from events of historical and political significance for the Republic and its people. The Republic and the Commission have a unique interest in resolving the ownership of or claims to the Arelma assets and in determining if, and how, the assets should be used to compensate those persons who suffered grievous injury under Marcos. There is a comity interest in allowing a foreign state to use its own courts for a dispute if it has a right to do so. The dignity of a foreign state is not enhanced if other nations bypass its courts without right or good cause. Then, too, there is the more specific affront that could result to the Republic and the Commission if property they claim is seized by the decree of a foreign court. Cf. Republic of Mexico v. Hoffman, 324 U. S. 30, 35-36 (1945) (pre-FSIA, common-law doctrine dictated that courts defer to executive determination of immunity because “[t]he judicial seizure” of the property of a friendly state may be regarded as “an affront to its dignity and may . . . affect our relations with it”).

Though this Court has not considered a case posing the precise question presented here, there are some authorities involving the intersection of joinder and the governmental immunity of the United States. See, e. g., Mine Safety Appliances Co. v. Forrestal, 326 U. S. 371, 373-375 (1945) (dismissing an action where the Under Secretary of the Navy was sued in his official capacity, because the Government was a required entity that could not be joined when it withheld consent to be sued); Minnesota v. United States, 305 U. S. 382, 386-388 (1939) (dismissing the action for nonjoinder of a required entity where the United States was the owner of the land in question but had not consented to suit). The analysis of the joinder issue in those cases was somewhat perfunctory, but the holdings were clear: A case may not proceed when a required-entity sovereign is not amenable to suit. These cases instruct us that where sovereign immunity is asserted, and the claims of the sovereign are not frivolous, dismissal of the action must be ordered where there is a potential for injury to the interests of the absent sovereign.

The Court of Appeals accordingly erred in undertaking to rule on the merits of the Republic and the Commission’s claims. There may be eases where the person who is not joined asserts a claim that is frivolous. In that instance a court may have leeway under both Rule 19(a)(1), defining required parties, and Rule 19(b), addressing when a suit may go forward nonetheless, to disregard the frivolous claim. Here, the claims of the absent entities are not frivolous; and the Court of Appeals should not have proceeded on the premise that those claims would be determined against the sovereign entities that asserted immunity.

The Court of Appeals determined that the claims of the Republic and the Commission as to the assets would not succeed because a suit would be time barred in New York. This is not necessarily so. If the Sandiganbayan rules that the Republic owns the assets or stock of Arelma because Marcos did not own them and the property was forfeited to the Republic under Philippine law, then New York misappropriation rules might not be the applicable law. For instance, the Republic and the Commission, standing in for Arelma based upon the Sandiganbayan’s judgment, might not pursue a misappropriation of public property suit, as the Court of Appeals assumed they would. They might instead, or in the alternative, file suit for breach of contract against Merrill Lynch. They would argue the statute of limitations would start to run if and when Merrill Lynch refused to hand over the assets. See N. Y. Civ. Prac. Law Ann. § 213 (West Supp. 2008); Ely-Cruikshank, Co. v. Bank of Montreal, 81 N. Y. 2d 399, 402, 615 N. E. 2d 985, 986 (1993) (“In New York, a breach of contract cause of action accrues at the time of the breach”). Or the Republic and the Commission might bring an action either in state or federal court to enforce the Sandiganbayan’s judgment. See 1 Restatement (Third) of Foreign Relations Law of the United States § 482, Comment a (1986) (jurisdiction of foreign court rendering judgment is presumed); id., Comment d (providing exceptions not relevant here); see also 28 U. S. C. § 2467(c) (providing for enforcement of foreign forfeiture judgments in certain circumstances). Merrill Lynch makes arguments why these actions would not succeed, see Brief for Merrill Lynch as Amicus Curiae 26-27, to which the Republic, the Commission, and the United States respond, see Reply Brief for Petitioners 14-18; Brief for United States as Amicus Curiae 24-28. We need not seek to predict the outcomes. It suffices that the claims would not be frivolous.

As these comments indicate, Rule 19 cannot be applied in a vacuum, and it may require some preliminary assessment of the merits of certain claims. For example, the Rule directs a court, in determining who is a required person, to consider whether complete relief can be afforded in their absence. See Fed. Rule Civ. Proc. 19(a)(1)(A). Likewise, in the Rule 19(b) inquiry, a court must examine, to some extent, the claims presented and the interests likely to be asserted both by the joined parties and the absent entities or persons. Here, however, it was improper to issue a definitive holding regarding a nonfrivolous, substantive claim made by an absent, required entity that was entitled by its sovereign status to immunity from suit. That privilege is much diminished if an important and consequential ruling affecting the sovereign’s substantial interest is determined, or at least assumed, by a federal court in the sovereign’s absence and over its objection.

As explained above, the decision to proceed in the absence of the Republic and the Commission ignored the substantial prejudice those entities likely would incur. This most directly implicates Rule 19(b)’s first factor, which directs consideration of prejudice both to absent persons and those who are parties. We have discussed the absent entities. As to existing parties, we do not discount the Pimentel class’ interest in recovering damages it was awarded pursuant to a judgment. Furthermore, combating public corruption is a significant international policy. The policy is manifested in treaties providing for international cooperation in recovering forfeited assets. See, e. g., United Nations Convention Against Corruption, G. A. Res. 58/4, chs. IV and V, U. N. Doc. A/RES/58/4, pp. 22, 32 (Dec. 11, 2003) (reprinted in 43 I. L. M. 37 (2004)); Treaty on Mutual Legal Assistance in Criminal Matters Art. 16, Nov. 13, 1994, S. Treaty Doc. No. 104-18 (1995). This policy does support the interest of the Pimentel class in recovering damages awarded to it. But it also underscores the important comity concerns implicated by the Republic and the Commission in asserting foreign sovereign immunity. The error is not that the District Court and the Court of Appeals gave too much weight to the interest of the Pimentel class, but that it did not accord proper weight to the compelling claim of sovereign immunity.

Based on these considerations we conclude the District Court and the Court of Appeals gave insufficient weight to the likely prejudice to the Republic and the Commission should the interpleader proceed in their absence.

B

As to the second Rule 19(b) factor — the extent to which any prejudice could be lessened or avoided by relief or measures alternative to dismissal, Fed. Rule Civ. Proc. 19(b)(2)— there is no substantial argument to allow the action to proceed. No alternative remedies or forms of relief have been proposed to us or appear to be available. See 7 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 1608, pp. 106-110 (3d ed. 2001) (collecting cases using alternative forms of relief, including the granting of money damages rather than specific performance, the use of declaratory judgment, and the direction that payment be withheld pending suits against the absent party). If the Marcos estate did not own the assets, or if the Republic owns them now, the claim of the Pimentel class likely fails; and in all events, if there are equally valid but competing claims, that too would require adjudication in a case where the Republic and the Commission are parties. See State Farm Fire & Casualty Co. v. Tashire, 386 U. S. 523, 534, and n. 16 (1967); Russell v. Clark’s Executors, 7 Cranch 69, 98-99 (1812) (Marshall, C. J.); Wichita & Affiliated Tribes of Okla. v. Hodel, 788 F. 2d 765, 774 (CADC 1986) (“Conflicting claims by beneficiaries to a common trust present a textbook example of a case where one party may be severely prejudiced by a decision in his absence” (citing Williams v. Bankhead, 19 Wall. 563, 570-571 (1874))).

C

As to the third Rule 19(b) factor — whether a judgment rendered without the absent party would be adequate, Fed. Rule Civ. Proe. 19(b)(3) — the Court of Appeals understood “adequacy” to refer to satisfaction of the Pimentel class’ claims. But adequacy refers to the “public stake in settling disputes by wholes, whenever possible.” Provident Bank, 390 U. S., at 111. This “social interest in the efficient administration of justice and the avoidance of multiple litigation” is an interest that has “traditionally been thought to support compulsory joinder of absent and potentially adverse claimants.” Illinois Brick Co., 431 U. S., at 737-738. Going forward with the action without the Republic and the Commission would not further the public interest in settling the dispute as a whole because the Republic and the Commission would not be bound by the judgment in an action where they were not parties.

D

As to the fourth Rule 19(b) factor — whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder, Fed. Rule Civ. Proc. 19(b)(4) — the Court of Appeals made much of what it considered the tort victims’ lack of an alternative forum should this action be dismissed. This seems to assume the plaintiff in this interpleader action was the Pimentel class. It is Merrill Lynch, however, that has the statutory status of plaintiff as the stakeholder in the interpleader action.

It is true that, in an interpleader action, the stakeholder is often neutral as to the outcome, while other parties press claims in the manner of a plaintiff. That is insufficient, though, to overcome the statement in the interpleader statute that the stakeholder is the plaintiff. See 28 U. S. C. § 1335(a) (conditioning jurisdiction in part upon whether “the plaintiff has deposited such money or property” at issue with the district court or has “given bond payable to the clerk of the court in such amount and with such surety as the court or judge may deem proper”). We do not ignore that, in context, the Pimentel class (and indeed all interpleader claimants) are to some extent comparable to the plaintiffs in noninterpleader cases. Their interests are not irrelevant to the Rule 19(b) equitable balance; but the other provisions of the Rule are the relevant ones to consult.

Merrill Lynch, as the stakeholder, makes the point that if the action is dismissed it loses the benefit of a judgment allowing it to disburse the assets and be done with the matter. Dismissal of the action, it urges, leaves it without an adequate remedy, for it “could potentially be forced ... to defend lawsuits by the various claimants in different jurisdictions, possibly leading to inconsistent judgments.” Brief for Merrill Lynch as Amicus Curiae 14. A dismissal of the action on the ground of nonjoinder, however, will protect Merrill Lynch in some respects. That disposition will not provide Merrill Lynch with a judgment determining the party entitled to the assets, but it likely would provide Merrill Lynch with an effective defense against piecemeal litigation and inconsistent, conflicting judgments. As matters presently stand, in any later suit against it Merrill Lynch may seek to join the Republic and the Commission and have the action dismissed under Rule 19(b) should they again assert sovereign immunity. Dismissal for nonjoinder to some extent will serve the purpose of interpleader, which is to prevent a stakeholder from having to pay two or more parties for one claim.

Any prejudice to Merrill Lynch in this regard is outweighed by prejudice to the absent entities invoking sovereign immunity. Dismissal under Rule 19(b) will mean, in some instances, that plaintiffs will be left without a forum for definitive resolution of their claims. But that result is contemplated under the doctrine of foreign sovereign immunity. See, e. g., Verlinden, 461 U. S., at 497 (“[I]f a court determines that none of the exceptions to sovereign immunity applies, the plaintiff will be barred from raising his claim in any court in the United States”).

V

The Court of Appeals’ failure to give sufficient weight to the likely prejudice to the Republic and the Commission should the interpleader proceed in their absence would, in the usual course, warrant reversal and remand for further proceedings. In this case, however, that error and our further analysis under the additional provisions of Rule 19(b) lead us to conclude the action must be dismissed. This leaves the Pimentel class, which has waited for years now to be compensated for grievous wrongs, with no immediate way to recover on its judgment against Marcos. And it leaves Merrill Lynch, the stakeholder, without a judgment.

The balance of equities may change in due course. One relevant change may occur if it appears that the Sandiganbayan cannot or will not issue its ruling within a reasonable period of time. Other changes could result when and if there is a ruling. If the Sandiganbayan rules that the Republic and the Commission have no right to the assets, their claims in some later interpleader suit would be less substantial than they are now. If the ruling is that the Republic and the Commission own the assets, then they may seek to enforce a judgment in our courts; or consent to become parties in an interpleader suit, where their claims could be considered; or file in some other forum if they can obtain jurisdiction over the relevant persons. We do note that if Merrill Lynch, or other parties, elect to commence further litigation in light of changed circumstances, it would not be necessary to file the new action in the District Court where this action arose, provided venue and jurisdictional requirements are satisfied elsewhere. The present action, however, may not proceed.

* * *

The judgment of the Court of Appeals for the Ninth Circuit is reversed, and the ease is remanded with instructions to order the District Court to dismiss the interpleader action.

It is so ordered.

APPENDIX

The Court of Appeals issued its decision before the 2007 amendments to Rule 19(b) became effective. See Merrill Lynch, Pierce, Fenner & Smith v. ENC Corp., 464 F. 3d 885, 891 (CA9 2006). The text of the Rule before those changes were adopted is as follows:

“Rule 19. Joinder of Persons Needed for Just Adjudication
“(a) Persons to be Joined if Feasible. A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in the person’s absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may (i) as a practical matter impair or impede the person’s ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest. If the person has not been so joined, the court shall order that the person be made a party. If the person should join as a plaintiff but refuses to do so, the person may be made a defendant, or, in a proper case, an involuntary plaintiff. If the joined party objects to venue and joinder of that party would render the venue of the action improper, that party shall be dismissed from the action.
“(b) Determination by Court Whenever Joinder not Feasible. If a person as described in subdivision (a)(l)-(2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judgment rendered in the person’s absence might be prejudicial to the person or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person’s absence will be adequate; fourth, whether the plaintiff will have an adequate re.medy if the action is dismissed for nonjoinder.
“(c) Pleading Reasons for Nonjoinder. A pleading asserting a claim for relief shall state the names, if known to the pleader, of any persons as described in subdivision (a)(l)-(2) hereof who are not joined, and the reasons why they are not joined.
“(d) Exception of Class Actions. This rule is subject to the provisions of Rule 23.” Fed. Rule Civ. Proc., 28 U. S. C.

Justice Stevens,

concurring in part and dissenting in part.

While I join Part II of the Court’s opinion holding that we have jurisdiction to review the Court of Appeals’ decision and agree that we should not affirm the Court of Appeals’ judgment on the merits of its analysis under Rule 19 of the Federal Rules of Civil Procedure, I believe the appropriate disposition of this case is to reverse and remand for further proceedings. The District Court and the Ninth Circuit erred by concluding that the New York statute of limitations provides a virtually insuperable obstacle to petitioners’ recovery of the Arelma, S. A., assets, and I therefore agree that this Court should reverse. I would not, however, give near-dispositive effect to the Republic of the Philippines (Republic) and the Philippine Presidential Commission on Good Governance’s (Commission) status as sovereign entities, as the Court does in ordering outright dismissal of the case.

In my judgment, the Court of Appeals should either order the District Judge to stay further proceedings pending a reasonably prompt decision of the Sandiganbayan or order the case reassigned to a different District Judge to conduct further proceedings. There is, of course, a risk of unfairness in conducting such proceedings without the participation of petitioners. But it is a risk that they can avoid by waiving their sovereign immunity, and the record provides a basis for believing that they would do so if the case proceeded before a different judge.

The Republic did not invoke its sovereign immunity until after the District Court denied its motion seeking dismissal or transfer for improper venue, dismissal on act of state grounds, or recusal of the District Judge. App. 9; id., at 2-3 (docket entries). In support of that motion they advanced a factual basis for suspecting that the District Judge’s impartiality could be questioned. Memorandum of Law in Support of the Motions To Dismiss, Transfer or Stay, and for Recusal in Civ. No. CV00-595MLR (D. Haw.), pp. 23-28. These facts demonstrate that the District Judge would likely “have substantial difficulty in putting out of his or her mind previously-expressed views.” California v. Montrose Chemical Corp. of California, 104 F. 3d 1507, 1521 (CA9 1997) (providing the standard for when the Ninth Circuit will reassign a case (internal quotation marks omitted)).

It appears, for example, that the District Judge summoned an attorney representing Merrill Lynch to a meeting in chambers in Los Angeles on September 11,2000, after learning that the Republic and the Commission sought to obtain the Arelma funds from Merrill Lynch. During these proceedings, the District Judge directed Merrill Lynch to file an interpleader action before him in the District of Hawaii and to deposit the Arelma funds with the court, despite the attorney’s argument that New York would likely be the more appropriate forum. See ante, at 859; Tr. 6 (Sept. 11, 2000). Merrill Lynch filed the interpleader on September 14, 2000, and the District Judge sealed the file, making it difficult for other parties to determine the status of the proceedings. See Affidavit of Richard A. Martin in Support of the Motions To Dismiss, Transfer or Stay Submitted by the Republic of the Philippines and the Presidential Commission on Good Government in Civ. No. CV00-595MLR (D. Haw.), ¶¶6-7,11. These actions bespeak a level of personal involvement and desire to control the Marcos proceedings that create at least a colorable basis for the Republic and the Commission’s concern about the District Judge’s impartiality.

Furthermore, following the Republic and the Commission’s motion to dismiss the action on sovereign immunity-grounds, the District Judge decided that they were not “real parties in interest.” See In re Republic of Philippines, 309 F. 3d 1143, 1148 (CA9 2002). The Ninth Circuit reversed and directed the District Judge to enter a stay, id., at 1153; the District Court did so, but vacated the stay within months. While the District Court’s decision to do so was not without some basis, it presumably increased concern about the possibility that the District Judge would not fairly consider the Republic’s position on the merits.

Upon reassignment, the question whether to dismiss the case, to stay the proceedings, or to require the Republic to choose between asserting its sovereign immunity and defending on the merits would be open. The District Judge might wish to hold a hearing to determine whether the Republic and the Commission have a substantial argument that the Republic owned the disputed assets when they were conveyed to Arelma in 1972. While the Court assumes that the Republic’s interest in the Arelma assets is “not frivolous,” ante, at 867, on this record, it is not clear whether the Republic has a sufficient claim to those assets to preclude their recovery by judgment creditors of Marcos. The Republic’s claim to disputed assets may be meritless for reasons unrelated to the potential statute of limitations.

Further, in conducting the balancing inquiry mandated by Rule 19, as interpreted by Justice Harlan’s opinion for the Court in Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U. S. 102 (1968), I would conclude that several facts specific to this case suggest that the Republic and the Commission’s sovereign interests should be given less weight than in the ordinary case. First, in all events, the Republic and the Commission must take affirmative steps in United States courts (or possibly invoke the assistance of the Attorney General to do so, see Brief for United States as Amicus Curiae 27) at some point in order to recover the assets held in the United States. Thus, the sovereign interest implicated here is not of the same magnitude as when a sovereign faces liability; the Republic’s interest is in choosing the most convenient venue and time for the suit to proceed.

Second, in the past two decades, the Republic has participated in other proceedings involving Marcos’ assets in our courts without interposing any objection. Indeed, in 1987 it filed an amicus brief with the Ninth Circuit in the underlying consolidated class action that led to the entry of respondents’ judgment against Marcos; in that brief the Republic urged the Ninth Circuit to reverse the District Judge’s dismissal of two of the cases (later consolidated) under the act of state doctrine and “to allow the Plaintiffs in those two cases to present their evidence of gross human rights violations against Ferdinand Marcos and to pursue justice in U. S. District Court.” App. A to Brief for Respondent Pimentel RA-1.

This was the Republic’s position notwithstanding the fact that any recovery would come from a judgment against Marcos’ assets — assets that the Republic and the Commission now claim to have owned in full from the moment Marcos acquired them. See, e. g., Brief for Republic in Nos. 04-16401 etc. (CA9), p. 9 (“Under Philippine law, assets resulting from the misuse of public office, bribery, corruption, and other such crimes by public officials are forfeit to the Republic from the moment such assets are generated”); Pet. for Republic in No. 0141 (Sandiganbayan) (filed 1991) (seeking forfeiture of a large number of Marcos assets). Even if the Republic believed that Marcos might have some personal assets that were not ill gotten, under the Republic’s theory that amount could not possibly have approached the judgment respondents received. Either the Republic was encouraging futile and purely symbolic litigation, or the Republic believed that other creditors would have access to at least a portion of Marcos’ vast assets.

In sum, I am persuaded that the Court’s judgment today represents a more “inflexible approach” than the Rule contemplates. Provident, 390 U. S., at 107. All parties have an interest in the prompt resolution of the disposition of the Arelma assets. A remand would allow a new judge to handle the matter in an expeditious fashion rather than requiring a brand new proceeding. The Court suggests that Merrill Lynch may file in another District Court — presumably in New York — if it seeks to commence further litigation. See ante, at 873. While this solution would put the matter berfore another District Judge, it requires the initiation of a new proceeding that may unnecessarily delay the final resolution.

Accordingly, I respectfully dissent.

Justice Souter,

. concurring in part and dissenting in part.

I join all but Parts IV-B and V of the Court’s opinion. I differ as to relief because a conclusion of the matter pending before the Sandiganbayan may simplify the issues raised in this case and render one disposition or another more clearly correct. I would therefore vacate the judgment and remand for a stay of proceedings for a reasonable time to await a decree of the Philippine court. If it should appear later that no such decree can be expected, the Court of Appeals could decide on the next step in light of the Court’s opinion. For reasons given by Justice Stevens, I would order that any further proceedings in the District Court be held before a judge fresh to the case.


author: Justice Ginsburg

text:
    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

      Adina H. Rosenbaum argued the cause for petitioner. With her on the briefs were Brian Wolfman, Scott L. Nelson, and Michael John Pangia.

      Douglas Hallward-Driemeier argued the cause for the federal respondent. With him on the brief were former Solicitor General Clement, Acting Assistant Attorney General Bucholtz, Deputy Solicitor General Kneedler, Leonard Schaitman, and Robert D. Kamenshine.

      Catherine E. Stetson argued the cause for respondent Fairchild Corporation. With her on the brief were Christopher T Handman and N. Thomas Connolly.

      Briefs of amici curiae urging reversal were filed for the American Association for Justice by John Vail and Kathleen Flynn Peterson; for Civil Procedure and Complex Litigation Professors by David L. Shapiro and John Leubsdorf, both pro se; for the National Security Archive et al. by Meredith Fuchs; and for Lavonna Eddy et al. by James A. Feldman and Gerald S. Hartman.

        Mark L. Shurtleff, Attorney General of Utah, and Philip S. Lott and Peggy E. Stone, Assistant Attorneys General, filed a brief for the State of Utah as amicus curiae urging affirmance.

        Jack R. Bierig filed a brief for the American Dental Association as amicus curiae.

   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.

The Freedom of Information Act (FOIA or Act) 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).

I

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,” § 552(b)(4). 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, 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) “deliberate] maneuvering]” 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^],” 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]”).

We granted certiorari, 552 U. S. 1136 (2008), to resolve the disagreement among the Circuits over the permissibility and scope of preclusion based on “virtual representation.”

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. 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.” 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 “precluding] 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.” Rickards, 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 purposes, the recognized exceptions can be grouped 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 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).

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).

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 “assumed] 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, at 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, at 433-434. And although our decisions have not addressed the issue directly, it also seems clear that preclusion is appropriate when a non-party later brings suit as an agent for a party who is bound by a judgment. See id., §4449, at 335.

Sixth, in certain circumstances a special statutory scheme may “expressly foreclos[e] successive litigation by non-litigants ... 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.

Ill

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, at 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) (en banc). But other courts, including the Eighth, Ninth, and D. C. Circuits, apply multifactor tests for virtual representation that permit non-party preclusion in cases that do not fit within any of the established exceptions. See supra, at 888-891, 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” non-parties. 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 Fair-child 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, Fair-child 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 Fair-child 20. That observation, however, scarcely implies that privity is governed by a diffuse balancing test. Fairchild also cites Blonder-Tongue Laboratories, Inc. v. University of III. 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 non-party 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 swpra, at 895-896. 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 non-party 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 897-898. 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. 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, Rickards, 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.” 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. 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, at 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 FA A 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.”).

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, at 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.

       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).

       The D. C. Circuit did not discuss the District Court’s distinction between public-law and private-law claims.

       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) (en banc); EEOC v. Perneo 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).

       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).

       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).

       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.

       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, at 425-429. We have never had occasion to consider this ground for non-party preclusion, and we express no view on it here.

       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, at 351-353, and n. 33 (collecting cases). To ward off confusion, we avoid using the term “privity” in this opinion.

       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.

       The FA A 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).

        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 & Jac

        quelin, 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.

       Nonparty preclusion in such cases ranks under the sixth exception described above: special statutory schemes that expressly limit subsequent suits. See supra, at 895.

       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.).