Taylor, Brent v. Blakey, Marion

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 2, 2007 Decided June 22, 2007

No. 05-5279

BRENT TAYLOR,

APPELLANT

v.

MARION C. BLAKEY,

ADMINISTRATOR, FEDERAL AVIATION ADMINISTRATION AND

FAIRCHILD CORPORATION,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 03cv00173)

Michael John Pangia argued the cause and filed the briefs

for appellant.

Adina H. Rosenbaum argued the cause for amicus curiae

Public Citizen, Inc. in support of appellant. With her on the

brief was Brian Wolfman.

Harry L. Riggs, Jr. and Melissa L. Korfhage were on the

brief for amicus curiae Experimental Aircraft Association, Inc.

in support of appellant.

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Alan Burch, Assistant U.S. Attorney, argued the cause for

appellee Marion Blakey. On the brief were Jeffrey A. Taylor,

U.S. Attorney, and R. Craig Lawrence and Peter D. Blumberg,

Assistant U.S. Attorneys. Michael J. Ryan, Assistant U.S.

Attorney, entered an appearance.

N. Thomas Connally argued the cause for appellee Fairchild

Corporation. With him on the brief was Emily M. Yinger.

Before: GINSBURG, Chief Judge, and GRIFFITH, Circuit

Judge, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Chief Judge GINSBURG.

GINSBURG, Chief Judge: Brent Taylor requested certain

documents from the Federal Aviation Administration under the

Freedom of Information Act. The FAA denied his request and

Taylor sued to compel disclosure. The district court dismissed

the case, holding res judicata barred Taylor’s claim because

Greg Herrick, a “close associate” of Taylor’s, had been his

“virtual representative” in a prior FOIA case Herrick had

brought unsuccessfully seeking the same documents. We affirm

that judgment.

I. Background

Herrick, a member of the Antique Aircraft Association

(AAA) and the owner of an F-45 aircraft manufactured by a

predecessor of the Fairchild Corporation, filed a request under

the FOIA seeking the plans and specifications for the F-45.

Herrick v. Garvey, 298 F.3d 1184, 1188 (10th Cir. 2002). After

conferring with Fairchild, the FAA determined the requested

material was a trade secret and withheld the information

pursuant to Exemption 4 of the FOIA. See 5 U.S.C. § 552(b)(4).

Herrick challenged the FAA’s determination, pointing to a 1955

3

letter from Fairchild’s predecessor authorizing the government

to disclose the information to the public. Herrick, 298 F.3d at

1193-94. The United States District Court for the District of

Wyoming granted summary judgment to the FAA. The Tenth

Circuit Court of Appeals, affirming, id. at 1194-95, opined that

Fairchild’s letter authorizing disclosure had deprived the F-45

documents of their status as a trade secret but, because Herrick

had not challenged on appeal the district court’s assumption that

Fairchild’s later revocation of that authorization restored their

status as a trade secret, the Tenth Circuit assumed without

deciding that revocation would have such an effect. Id. at 1194

n.10.

Approximately one month after the Tenth Circuit issued its

decision in Herrick, Taylor, the executive director of the AAA,

filed a FOIA request for the same documents relating to the F-45

that Herrick had sought. After failing to receive a response from

the FAA’s Production and Airworthiness Division, Taylor,

represented by the lawyer who had represented Herrick in his

litigation, appealed the constructive denial to the FAA’s FOIA

Program Manager, noting the decision in Herrick and arguing

the trade secret status of the F-45 documents, having long been

abandoned, could not be restored. The FAA nonetheless

withheld the material under Exemption 4 and Taylor, still

represented by Herrick’s counsel, sought review in the district

court.

Taylor filed a motion for discovery and a memorandum in

support thereof, in which he said that Herrick “has now

requested [Taylor] to assist him with the repair of his aircraft.”

The district court denied the motion as premature, preferring to

wait until the Government moved for summary judgment before

determining whether discovery was appropriate in this case.

Fairchild then successfully moved to intervene as a defendant,

after which Fairchild and the FAA moved for summary

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judgment, contending, among other things, that Taylor was

precluded by the doctrine of res judicata from bringing this

claim because he had been “virtually represented” by Herrick in

the litigation in the Tenth Circuit.

Fairchild accompanied its motion with a statement of

undisputed material facts that identified Herrick as a “close

associate of Taylor’s.” In his opposition to summary judgment

Taylor did not challenge this characterization and acknowledged

he and Herrick were both members of the same antique aircraft

association and shared a common interest in preserving antique

aircraft. He did suggest, however, that such commonalities were

insufficient to warrant preclusion of his claim, and added that he

did not know of Herrick’s FOIA request until after the Tenth

Circuit’s decision. Also, he said Herrick and Taylor sought the

information for different reasons — Herrick to restore his F-45

and Taylor more generally “for the public and in the interest of

the preservation of antique aircraft heritage.”

The district court entered a summary judgment for the FAA

and Fairchild. Noting Taylor’s failure to present any evidence

in opposition, and apparently assuming Taylor had agreed to

Herrick’s request for assistance mentioned in Taylor’s motion

for discovery, the court concluded it was

left with two individuals who are quite fond of antique

aircrafts and the historical preservation thereof, who

are members of the same antique aircraft association,

who keep apprised of each other’s litigation, and who

successively used the same lawyer to seek identical

information regarding an exceedingly rare aircraft that

Herrick happens to own and Taylor has agreed to

repair.

(footnotes omitted). The court also noted that this case involves

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a matter of public law, which, because multiple parties could

raise the same claim, it believed weighed in favor of finding the

claim precluded. Applying the seven-factor test for virtual

representation announced by the Eighth Circuit in Tyus v.

Schoemehl, 93 F.3d 449 (1996), the court held Herrick indeed

had been Taylor’s virtual representative. Accordingly, the court

dismissed the case as barred by res judicata.

Taylor moved for reconsideration and filed, for the first

time, an affidavit. In the affidavit he stated that he did not have

an agreement with Herrick to restore Herrick’s F-45 and that he

had hired Herrick’s lawyer because of his knowledge of the

issues and because hiring another attorney “would not have been

cost effective and would have taken too much time.” The

attorney also submitted an affidavit stating there was no

agreement between Taylor and Herrick to rebuild Herrick’s F-

45. The district court denied reconsideration and Taylor

appealed.

II. Analysis

Under the doctrine of res judicata, or claim preclusion, “a

judgment on the merits in a prior suit bars a second suit

involving the same parties or their privies based on the same

cause of action.” Parklane Hosiery Co. v. Shore, 439 U.S. 322,

326 n.5 (1979); Drake v. FAA, 291 F.3d 59, 66 (D.C. Cir. 2002).

Res judicata bars relitigation both of “issues that were” and of

issues that “could have been raised” in the prior action. Allen v.

McCurry, 449 U.S. 90, 94 (1980); Drake, 291 F.3d at 66. Our

review of the district court’s application of the doctrine is de

novo. Ibrahim v. Dist. of Columbia, 463 F.3d 3, 7 (D.C. Cir.

2006).

Taylor contends Herrick does not preclude his claim here

because (1) he is not in privity with Herrick, (2) there was no

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final judgment on the merits in Herrick, and (3) his claim is

different from Herrick’s. Taylor also claims (4) the district

court erred in denying his motion for discovery. The

Government and Fairchild argue (1) dismissing the case as a res

judicata was appropriate and, (2) in the alternative, the requested

documents are protected from disclosure under Exemption 4.

We conclude the claim is barred as a res judicata and do not

reach the other issues briefed by the parties.

A. Virtual Representation

Although a litigant is not ordinarily bound by the judgment

in a prior suit to which he was not a party, “there is an exception

when it can be said that there is ‘privity’ between a party to the

second case and a party who is bound by an earlier judgment.”

Richards v. Jefferson County, 517 U.S. 793, 798 (1996). Privity

is an “elusive concept, without any precise definition of general

applicability.” Jefferson Sch. of Soc. Sci. v. Subversive Activities

Control Bd., 331 F.2d 76, 83 (D.C. Cir. 1963); see also 18A

CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE &

PROCEDURE § 4449 at 351 (2d ed. 2002) (“the privity label

simply expresses a conclusion that preclusion is proper”). At

one time courts tended not to find two parties in privity absent

a specific legal relationship between them, but the term “is now

used to describe various relationships between litigants that

would not have come within the traditional definition of that

term.” Richards, 517 U.S. at 798.

Courts now generally hold a nonparty’s claim precluded by

a prior suit based upon a particular form of privity known as

“virtual representation.” The idea is that some cases of

successive litigation involve as a litigant “a nonparty [to the

original action] whose interests were adequately represented by

a party to the original action.” Tyus, 93 F.3d at 454; cf. Martin

v. Wilks, 490 U.S. 755, 762 n.2 (1989) (“[I]n certain limited

7

circumstances, a person, although not a party, has his interests

adequately represented by someone with the same interests who

is a party”). In those cases the party to the prior litigation is

treated as the proxy of the nonparty, with the result that the

nonparty is barred from raising the same claim. At this level of

generality, the doctrine is not controversial. See Tice v. Am.

Airlines, Inc. 162 F.3d 966, 971 (7th Cir. 1998); see also

Gonzalez v. Banco Cent. Corp., 27 F.3d 751, 758 & n.5 (1st Cir.

1994).

In what circumstances were a person’s interests “adequately

represented” by another person? The Court explicated the

meaning of “adequate representation” in Richards where, after

assuming that “in some class suits adequate representation [of

nonparties] might cure a lack of notice,” 517 U.S. at 801, it

concluded that for a prior proceeding to have “binding effect on

absent parties,” the court must “insure that those present are of

the same class as those absent and that the litigation is so

conducted as to insure the full and fair consideration of the

common issue.” Id. (quoting Hansberry v. Lee, 311 U.S. 32, 43

(1940)). In Richards there was no reason to believe the court in

the prior case had taken care to protect the interests of the later

plaintiffs or that the plaintiffs in the prior case “understood their

suit to be on behalf” of the Richards plaintiffs; the litigants were

“best described as mere ‘strangers’ to one another.” Id. at 802.

In that circumstance res judicata would be inconsistent with due

process. Id.

Richards suggests both that identical interests and adequate

representation are necessary conditions for virtual

representation, and that there must be some relationship between

the litigant and his putative proxy, see also S. Cent. Bell Tel. Co.

v. Alabama, 526 U.S. 160, 167-68 (1999). We do not, however,

read Richards to hold a nonparty was adequately represented

only if special procedures were followed or the party to the prior

8

suit understood it was representing the nonparty; those

circumstances tend to support a finding of adequate

representation, but there is no reason to believe they are the only

circumstances in which res judicata is consistent with due

process. Cf. Tyus, 93 F.3d at 455.

This court has not had a prior occasion to apply the doctrine

of virtual representation, and we see that other circuits vary

widely in their approach to the doctrine. See Gonzalez, 27 F.3d

at 761. For example, the Fourth Circuit 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 nonparty’s behalf. Klugh v. United States,

818 F.2d 294, 300 (4th Cir. 1987). Regarding “tacit approval,”

the court cited the RESTATEMENT (SECOND) OF JUDGMENTS

§ 36(1), cmt. b (1982), according to which “[t]he essential

question is whether there is a disclosed relationship in which the

party is accorded authority to appear as a party on behalf of

others.” Id.; see Martin v. Am. Bancorp. Retirement Plan, 407

F.3d 643, 651-52 (4th Cir. 2005). In contrast, the Eighth Circuit

notes that “[d]ue to the equitable and fact-intensive nature of

virtual representation, there is no clear test for determining the

applicability of the doctrine,” but has identified several factors

to consider: whether the successive party (1) has an identity of

interests with the prior party; (2) has a close relationship with

the prior party; (3) participated in the prior litigation; (4)

apparently acquiesced in being bound by the prior litigation; (5)

was adequately represented, viewed in terms of the prior party’s

incentive to litigate; (6) deliberately maneuvered to avoid the

effects of the prior action; and (7) raises a public or a private law

issue, the former of which is more conducive to a finding of

virtual representation. Tyus, 93 F.3d at 455-56. The district

court applied Tyus in determining that Herrick had been

Taylor’s virtual representative. See also Am. Forest Res.

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Council v. Shea, 172 F. Supp. 2d 24, 32 (D.D.C. 2001) (applying

same test).

An appropriate test for virtual representation must consider

and balance competing interests in due process and efficiency.

Too readily to find virtual representation risks infringing upon

the nonparty’s right to due process of law and departs from our

“deep-rooted historic tradition that everyone should have his

own day in court.” Richards, 517 U.S. at 798. To find virtual

representation under only very narrow circumstances, on the

other hand, would expose defendants to the burden of

relitigation, raise the possibility of inconsistent results, and

compromise the public interest in judicial economy. See

Parklane, 439 U.S. at 326; Hardison v. Alexander, 655 F.2d

1281, 1288 (D.C. Cir. 1981). We believe these competing

concerns can best be addressed by considering five factors in a

test similar to that used by the Ninth Circuit in Irwin v. Mascott,

370 F.3d 924, 930 (2004). Like the Ninth Circuit, we believe

identity of interests and adequate representation are necessary

conditions. We do not, however, believe they are sufficient —

a point to which our sister circuit did not speak. We therefore

require in addition a showing of at least one of the other factors

the Ninth Circuit identified as supporting virtual representation:

a close relationship between the present party and his putative

representative, or 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. As this

approach clarifies, there can be no virtual representation absent

an affirmative link between the later litigant and either the prior

party or the prior case. Decisions finding virtual representation

have often applied the factors we adopt today, see 18A WRIGHT

ET AL., supra, § 4457 at 521-28 (collecting cases), and the

10

parties generally agree they are appropriate factors to consider.*

In determining whether Herrick served as Taylor’s virtual

representative, we base our conclusion upon the relevant

circumstances as of the time summary judgment was entered.

See, e.g., Catrett v. Johns-Manville Sales Corp., 826 F.2d 33, 37

(D.C. Cir. 1987).

1. Identity of Interests

Taylor seeks the same result as did Herrick, namely, release

of the F-45 documents. To establish the identity of their

interests, however, it is necessary to show not just that they

wanted the same result but also that Herrick had substantially

the same incentive to achieve it. See Chase Manhattan Bank,

N.A. v. Celotex Corp., 56 F.3d 343, 346 (2d Cir. 1995). A party

who is less than zealous in pursuing his case is not an effective

representative of a more committed party in a successive suit.

See Cleveland County Ass’n for Gov’t by the People v.

Cleveland County Bd. of Comm’rs, 142 F.3d 468, 474 (D.C. Cir.

1998). Here, the evidence is that Herrick and Taylor had

substantially the same incentive. Taylor concedes he shares

Herrick’s interest in the preservation of antique aircraft as a

general matter. Taylor also admitted, in his request for

discovery, that Herrick had asked him to assist with the

restoration of Herrick’s F-45. Although the district court erred

*

The FAA contends that because Taylor did not argue against use of

the Tyus factors in the district court, but argued only that Herrick

should not be considered his virtual representative pursuant to those

factors, he has forfeited his present argument that the Tyus test is

overly broad. Taylor’s objections to the district court’s interpretation

of the record in light of Tyus, however, carry over to the extent we

consider several of those same factors pursuant to the variant of Irwin

we adopt today.

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in stating at summary judgment that Taylor had agreed to help

restore the aircraft, there was still evidence that Herrick and

Taylor had the same motivation to obtain the documents, viz.,

the restoration of Herrick’s F-45. In the absence of any contrary

evidence, see, e.g., Bias v. Advantage Intern., Inc., 905 F.2d

1558, 1561 (D.C. Cir. 1990) (“Once the moving party has

carried its burden ... [t]he nonmoving party ‘must come forward

with specific facts showing that there is a genuine issue for

trial.’” (quoting Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986)) (internal quotation mark

omitted)), such as an opposing affidavit, the district court

correctly found their interests were identical.

Taylor points out that he alleged in his opposition to

summary judgment that he sought “the information for the

public and in the interest of the preservation of antique aircraft

heritage”; contends the admission that Herrick had asked him to

help restore Herrick’s aircraft was an erroneous statement made

by his counsel; and claims he did not need to file an affidavit

correcting the error because neither the FAA nor Fairchild had

identified Herrick’s supposed request as an undisputed material

fact. Taylor’s statement in his motion for discovery, however,

may be treated as an “admission[] on file,” FED. R. CIV. P. 56(c);

see also Gospel Missions of Am. v. City of Los Angeles, 328 F.3d

548, 557 (9th Cir. 2003) (representation in brief may be treated

as admission on file); United States v. One Heckler-Koch Rifle,

629 F.2d 1250, 1253 (7th Cir. 1980); 10A WRIGHT ET AL., supra

§ 2722 at 375-76, § 2723 at 389-91 (3d ed. 1998); and

Fairchild’s motion for summary judgment did identify that

statement as evidence of a close relationship between Taylor and

Herrick. Taylor therefore had notice of its potential use by the

district court, yet made no effort to correct the error until after

12

the court had entered judgment against him.* Taylor responds

that a statement in a memorandum of law should not be treated

as evidence, citing Orson, Inc. v. Miramax Film Corp., 79 F.3d

1358, 1372 (3d Cir. 1996), but that case involved a factual

assertion by the plaintiff offered in support of his claim, id., and

thus is relevantly different from the statement against interest at

issue here. Cf. Fund for Animals, Inc. v. Norton, 322 F.3d 728,

734 (D.C. Cir. 2003) (pleadings are “admissible as evidence in

support of ... opponent’s cause”).

In any event, the distinction Taylor draws between his

interest in the preservation of antique aircraft and Herrick’s is

not helpful to his cause. Herrick’s specific interest in the

restoration of his F-45 gave him, if anything, a stronger

incentive to litigate than Taylor’s general interest in public

disclosure and the “preservation of antique aircraft heritage.”

2. Adequate Representation

Following the Eighth Circuit in Tyus, the district court

analyzed whether Taylor’s interest had been adequately

represented in Herrick in terms of Herrick’s incentive to litigate,

which we have treated above as part of the identity of interests

analysis. Finding adequate representation based solely upon

incentives would be insufficiently protective of the nonparty’s

right to due process. See Richards, 517 U.S. at 801; Tyus, 93

F.3d at 458-59 (Henley, J., concurring in result); 18A WRIGHT

*

Furthermore, Taylor’s post-summary judgment affidavit does not

actually correct the statement made in the admission; it only states that

he had no agreement with Herrick to restore his F-45, not that Herrick

had not asked for his assistance. This is perhaps understandable given

the district court’s erroneous statement that there was an agreement,

but one would think Taylor would have taken care at that point to

disavow as much of a relationship with Herrick as he could do.

13

ET AL., supra, § 4457 at 548-49; cf. Headwaters Inc. v. U.S.

Forest Serv., 399 F.3d 1047, 1054 (9th Cir. 2005) (adequate

representation aspect of Irwin test “subsumes Richards’s due

process requirements”).

Notice is ordinarily a key element of due process, see, e.g.,

Richards, 517 U.S. at 799-800, but it is neither a sufficient nor

a necessary condition of adequate representation. To deem

notice sufficient would in effect transform permissive into

mandatory intervention in judicial proceedings, a step the

Supreme Court rejected in Wilks. 490 U.S. at 762-63; see also

S. Cent. Bell, 526 U.S. at 168. On the other hand, were notice

deemed necessary to virtual representation — a question

pointedly left open in Richards, 517 U.S. at 801 — a close

associate of the prior party, with identical interests, could

relitigate a claim that was zealously but unsuccessfully tried to

judgment and that, even if he had received notice of and

intervened in the prior case, would have proceeded in the same

way.*

To be sure, an opportunity to participate in the first case is

valuable, and is part of the reason we conclude virtual

representation requires, in addition to an identity of interests and

adequate representation, some tie to the prior case or the prior

party. But unlike the First and Seventh Circuits, which have

treated notice as necessary for a finding of virtual representation,

see Perez v. Volvo Car Corp., 247 F.3d 303, 312 (1st Cir. 2001);

*

Indeed, even if intervention by that close associate might have

changed the strategy or tactics of counsel in the first case, that does

not necessarily demonstrate the representation was inadequate. Cf.

Strickland v. Washington, 466 U.S. 668, 688-90 (1984) (“There are

countless ways to provide effective assistance in any given case. Even

the best criminal defense attorneys would not defend a particular client

in the same way.”).

14

Tice, 162 F.3d at 973; cf. Headwaters, 399 F.3d at 1055

(reversing sua sponte dismissal as a res judicata and remanding

for determination of facts relevant to privity, noting in part

“there is no way to determine whether the adequate

representation/due process requirements ... were met here. We

do not know whether Headwaters had notice of the earlier suits

while they were pending.”), and like the Eighth Circuit in Niere

v. St. Louis County, 305 F.3d 834, 837-38 (2002) (determining

plaintiffs, under Missouri law, had been virtually represented in

prior state court action of which they had no notice), we see no

reason to treat notice as anything more or less than an important

consideration.

The district court concluded Taylor apparently had notice

of Herrick’s litigation based primarily upon their shared interest

in antique aircraft, their common membership in the AAA, their

use of the same lawyer for their respective cases, Herrick’s

sharing with Taylor the information he obtained through

discovery, and his request that Taylor assist in the restoration of

his F-45.* As Taylor and the amicus note, however, these facts

do not show that Taylor had notice of Herrick’s lawsuit while it

was ongoing.** We turn to other indicia, therefore, to determine

*

To be precise, the district court concluded from these facts that

Taylor had apparently acquiesced in being bound by Herrick’s

litigation, but consent necessarily entails notice.

**

Taylor and the amicus also note that even if Taylor had notice of

Herrick’s litigation, he could not have joined it because he had not yet

filed a FOIA request for and been denied the F-45 documents.

Taylor’s not yet having sought the documents, however, is equally

consistent with his having decided independently to seek the same

information under the FOIA and his having cooperated with Herrick

to give themselves a second chance if the first challenge failed. The

latter scenario would be indicative of virtual representation but on this

record we can draw no inference as to which more likely occurred.

15

whether Taylor was adequately represented by Herrick.

First, Herrick had an incentive to litigate zealously and his

motives were substantially similar to and seemingly even

stronger than, Taylor’s. Although not dispositive for the reason

given before, it is eminently reasonable to believe an individual

with a strong incentive to litigate a particular matter, by

defending his own interest adequately represents others with the

same interest. Second, Herrick and Taylor used the same

attorney to pursue their FOIA claims. Although use of the same

counsel in itself is hardly dispositive, see S. Cent. Bell, 526 U.S.

at 167-68, in combination with an identity of interest it is surely

relevant, see, e.g., Irwin, 370 F.3d at 931; see also Ruiz v.

Comm’r of Dep’t of Transp. of the City of New York, 858 F.2d

898, 903 (2d Cir. 1988), because, unless explained away by

some unusual circumstance, it strongly suggests satisfaction

with the attorney’s performance in the prior case. We therefore

conclude that, in Taylor’s own view, counsel provided adequate

representation of Herrick, and by extension, of Taylor himself,

in Herrick’s case. See Irwin, 370 F.3d at 391.*

3. Close Relationship

Taylor acknowledges he and Herrick know each other, have

a common interest in the preservation of antique aircraft, and

belong to many of the same aviation associations. In his view,

however, a close association for res judicata purposes is a

relationship like that between family members or business

partners — the examples we mentioned in Ethnic Employees of

the Library of Congress v. Boorstin, 751 F.2d 1405, 1411 n.8

*

The affidavit Taylor submitted with his motion for reconsideration

to explain his choice of counsel, see p. 5 above, because it was

submitted after the entry of summary judgment, is not part of the res

judicata determination in this case.

16

(1985). Amicus Public Citizen relatedly posits the relationship

must be one such that Herrick would have understood he was

representing Taylor in the first lawsuit or would have “made a

special effort to represent Taylor’s interests.” See, e.g., Martin,

407 F.3d at 651-52; Becherer v. Merrill Lynch, Pierce, Fenner

& Smith, Inc., 193 F.3d 415, 424 (6th Cir. 1999) (en banc);

Pollard v. Cockrell, 578 F.2d 1002, 1008-09 (5th Cir. 1978).

Unlike the courts just cited, we do not believe that only a

legal relationship may qualify as a “close relationship.”

Whether two individuals have sufficiently close connections that

one may act as the virtual representative of the other is a

functional, not a formal question. See Chase, 56 F.3d at 346.

This is a case in point. Contrary to Taylor’s argument, the

record before us indicates Herrick and Taylor were not merely

people who happened to share a common interest and

membership in the same organizations, but knew each other

quite well: Herrick asked Taylor to assist him in restoring his F-

45, provided information to Taylor that Herrick had obtained

through discovery, and at summary judgment Taylor did not

oppose Fairchild’s characterization of Herrick as his “close

associate.” Taylor argues he did not do so because he assumed

the phrase meant only that “they know each other and belong to

many of [the] same aviation associations” and because he did

not understand it to “imply [they] were close associates prior to

Taylor’s FOIA request.” In fact, however, both the Government

and Fairchild invoked Taylor’s close relationship to Herrick as

evidence indicative of privity; Taylor therefore knew the point

of Fairchild’s characterization, yet his only response was to say

“mere common membership does not create power in on[e]

member to represent others.” In light of these facts, and the

complete lack of any evidence submitted by Taylor in

opposition, we conclude Taylor and Herrick were in a “close

relationship” for the purpose of determining whether Herrick

was Taylor’s virtual representative in the prior litigation.

17

4. Tactical Maneuvering

Tactical maneuvering by the second litigant, which in this

context means conduct “designed unfairly ... to obtain multiple

bites of the litigatory apple,” Gonzalez, 27 F.3d at 761, is

indicative of virtual representation. Amicus Public Citizen

alone appears to take issue with any consideration of such

maneuvering, saying, “it puts the cart before the horse to base

privity on a finding of tactical maneuvering ...[;] Taylor can only

be found to have engaged in improper maneuvering if he was

already in privity with Herrick.” At least some forms of tactical

maneuvering, however, are probative of collusion or otherwise

indicative of privity and therefore should be considered a factor

supporting virtual representation. See, e.g., Tyus, 93 F.3d at 457

(plaintiffs in ongoing suit filing second suit and adding several

new plaintiffs considered tactical maneuvering); Pedrina v.

Chun, 97 F.3d 1296, 1299, 1302 (9th Cir. 1996) (certain

plaintiffs in federal court, having brought and lost state court

action over same transaction, held virtual representatives of

newly-added plaintiffs).

In this case, Taylor filed his FOIA request for the F-45

documents almost immediately after the Tenth Circuit decided

Herrick and, in filing his administrative appeal with the FAA

three months later, Taylor used information Herrick had

obtained through discovery in that case. Taylor’s filing on the

heels of a court decision affirming the government’s position

with the assistance of the losing party to the prior litigation

suggests Herrick and Taylor coordinated the filing of Taylor’s

request — and the litigation that would almost certainly follow

— so that Taylor could try where Herrick had failed, to the

benefit of both. As Taylor correctly notes, however, these facts

do not necessarily show collusion to avoid the preclusive effects

of Herrick; for example, Taylor could have read about Herrick

18

and acted on his own to file an identical FOIA request, and

passing along documents obtained through discovery is

something Herrick might have done even for someone with

whom he was not in cahoots. In view of the ambiguity of the

facts, and because we do not need to determine whether they

count as tactical maneuvering, we do not do so.

To review the bidding, there is record evidence that: (1)

Taylor and Herrick had identical interests, even when viewed in

terms of incentives, and (2) Taylor’s interest was adequately

represented in Herrick, in addition to which (3) Herrick and

Taylor had a close working relationship relative to these

successive cases. There is no countervailing evidence. We

therefore conclude Herrick served as Taylor’s virtual

representative in the litigation for the F-45 documents.

Taylor complains that finding virtual representation upon

these facts effectively bars anyone from bringing a legal

challenge to the issue specifically left open in Herrick; a later

plaintiff would have to “prove he is a total stranger to Mr.

Herrick and Mr. Taylor and has no ‘interest’ in the documents.”

Relatedly, Taylor and Public Citizen suggest it is particularly

inappropriate to find virtual representation in a FOIA case

because every individual has the right to receive nonexempt

government information regardless whether another person

previously requested and was denied the same information.

Moveover, because many filers of FOIA requests are reporters,

public interest organizations, and academics, who are likely to

associate with others having similar interests, the purpose of the

FOIA would be disserved if those filers were precluded by res

judicata from making successive requests. Cf. United States

Dep’t of Justice v. Reporters Comm. for Freedom of the Press,

489 U.S. 749, 771 (1989) (“the identity of the requesting party

has no bearing on the merits of his or her FOIA request”).

19

The facts of this case simply do not implicate those

concerns, however. The record here, as we have noted, contains

evidence suggestive of identical interests, adequate

representation, and a close relationship and no evidence to the

contrary. Matters might look different if Taylor had submitted

evidence before summary judgment explaining, for example,

why their common counsel’s representation of Herrick did not

adequately represent Taylor’s interests, or demonstrating

Taylor’s relationship with Herrick was in fact nothing more than

a shared interest in antique aircraft and membership in the same

organizations, or showing that Herrick had not suggested or

offered to assist with Taylor’s claim for the same documents.

He did not do so, however, with the result that the record

supports finding Herrick and Taylor in privity.

B. Judgment on the Merits

For the purpose of claim preclusion, a final judgment on the

merits “is one that actually pass[es] directly on the substance of

[a particular] claim before the court,” Semtek Intern. Inc. v.

Lockheed Martin Corp., 531 U.S. 497, 501-02 (2001) (alteration

in original) (internal quotation marks omitted), as distinguished

from one that addresses “mere matters of practice, procedure,

jurisdiction, or form.” Harper Plastics, Inc. v. Amoco

Chemicals Corp., 657 F.2d 939, 943 (7th Cir. 1981) (quoting

Fairmont Aluminum Co. v. Comm’r, 222 F.2d 622, 625 (4th Cir.

(1955)). A final judgment on the merits of a claim precludes

“relitigating issues that were or could have been raised in [the

prior] action.” Allen, 449 U.S. at 94.

In Herrick the court ruled upon the plaintiff’s legal right to

the documents he sought under the FOIA, 298 F.3d at 1194-95;

the court’s judgment, therefore, is a final judgment on the

merits. Taylor argues it is not because the court assumed

without deciding two issues necessary to the judgment, namely,

20

that (1) Fairchild could restore trade secret status to the

documents at issue by revoking its permission to disclose them;

and (2) Fairchild had in fact revoked its permission. We fail to

see why this matters. The Tenth Circuit clearly decided

Herrick’s legal right to the F-45 documents. If Herrick is not a

final judgment on the merits, then Herrick himself could

relitigate the case, a risible proposition. See, e.g., Allen, 449

U.S. at 94.

C. Same Cause of Action

Taylor’s claim is the same as Herrick’s claim for the

purpose of res judicata if they share a common “nucleus of

facts.” See Apotex, Inc. v. FDA, 393 F.3d 210, 217 (D.C. Cir.

2004); Drake, 291 F.3d at 66. The key factors in making this

determination are “whether the facts are related in time, space,

origin, or motivation, whether they form a convenient trial unit,

and whether their treatment as a unit conforms to the parties’

expectations or business understanding or usage.” Apotex, 393

F.3d at 217.

Herrick and Taylor requested the same documents from the

same government agency and got the same negative response.

Taylor nonetheless argues the factual backdrop of his claim

differs from that of Herrick’s claim because his FOIA request

and challenge came after Herrick was decided and was based

upon the Tenth Circuit’s holding “that Exemption 4 has not

applied to the subject documents since 1955.” Putting aside the

question whether the court so “held,” Taylor’s point is that he

had to make a different legal argument for disclosure, namely

that the trade secret status of the documents he sought could not

be restored, whereas Herrick had argued Fairchild was not the

owner of the documents and therefore had no authority to revoke

the letter that had authorized the government to disclose the F-

45 documents to the public. As the Government and Fairchild

21

point out, however, a different legal theory does not by itself

demonstrate a difference in the nucleus of facts. See Apotex,

393 F.3d at 217-18. Indeed, in this case the relevant facts are

identical to those in Herrick.

In his reply brief, Taylor suggests for the first time that the

nucleus of facts in the two cases may be different because the

records maintained in the requested file may have changed since

Herrick made his request. See Negley v. FBI, 169 Fed. Appx.

591, 594 (D.C. Cir. Jan. 17, 2006) (“FOIA does not limit a party

to a single request, and because the records maintained by an

FBI office may change over time, a renewal of a previous

request inevitably raises new factual questions”). An argument

first made in a reply brief is ordinarily deemed forfeit, see Sitka

Sound Seafoods, Inc. v. NLRB, 206 F.3d 1175, 1181 (D.C. Cir.

2000), and we have no reason to depart from that rule in the

present case. Cf. Natural Res. Def. Council, Inc. v. EPA, 25

F.3d 1063, 1072 n.4 (D.C. Cir. 1994) (exception “properly

granted only for arguments questioning the court’s jurisdiction

... or where a ‘manifest injustice’ might result from ... failure to

reach an argument”).

III. Conclusion

For a party to be deemed the “virtual representative” of a

party to a later suit making the same claim, the two parties must

have the same interests and those interests must have been

adequately represented in the first litigation. In addition, there

must be a close relationship between the two, or the new party

must have participated substantially in the prior litigation or

engaged in tactical maneuvering to avoid the preclusive effects

of the first decision.

In this case the record before the district court at summary

judgment indicated Herrick and Taylor had identical interests in

22

obtaining the F-45 documents, which interests were adequately

represented in Herrick’s litigation; and they were close

associates. The district court therefore did not err in holding the

two were in privity.

Taylor has raised the same claim as had Herrick, and the

Tenth Circuit’s decision in Herrick’s case was clearly a final

judgment on the merits. The requirements for res judicata are

therefore satisfied, and the decision of the district court is

accordingly

Affirmed.