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.
 2

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
 4

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
 5

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
 6

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.
 9

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.
 11

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.