                                                     [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                            FILED
                   FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                     ________________________ ELEVENTH CIRCUIT
                                                         JAN 9, 2007
                           No. 06-13508               THOMAS K. KAHN
                       Non-Argument Calendar               CLERK
                     ________________________

                 D. C. Docket No. 05-00352-CV-CG-C

LIONEL GUSTAFSON,
THOMAS M. BROWN, et al.,


                                                     Plaintiffs-Appellants,

                              versus

THE HONORABLE ADRIAN JOHNS,
THE HONORABLE ALFRED Q. BOOTH,
et al.,


                                                 Defendants-Appellees,

LOWELL BARRON,
HENRY (HANK) SANDERS,
et al.,


                                                Intervenor-Defendants-
                                                            Appellees.
                               ________________________

                       Appeal from the United States District Court
                          for the Southern District of Alabama
                             _________________________

                                      (January 9, 2007)

Before BLACK, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

       Appellants, nineteen Alabama voters, filed suit challenging Alabama’s 2001

legislative redistricting plans, Acts 2001-727 and 2001-729. (Ala. Code § 29-1-2.3

(2001) and Ala. Code § 29-1-1.2 (2001), respectively). Appellants claim that the

redistricting plans: (1) violate the constitutional guarantee of one-person, one-vote;

(2) constitute illegal partisan gerrymandering; and (3) violate Appellants’ First

Amendment right to the freedom of association. After conducting a bench trial, the

three-judge district court1 held that all Plaintiffs’ claims were barred under the

doctrine of res judicata and dismissed Appellants’ claims with prejudice. This

appealed ensued.




       1
          Pursuant to 28 U.S.C. § 2284(a), a three-judge federal district court was empaneled to
hear this case. Section 2284(a) states that “[a] district court of three judges shall be convened
when otherwise required by Act of Congress, or when an action is filed challenging the
constitutionality of the apportionment of congressional districts or the apportionment of any
statewide legislative body.”

                                                 2
                                   BACKGROUND

      On June 16, 2005, Appellants brought this lawsuit against Alabama probate

judges to challenge the constitutionality of the 2001 Alabama redistricting plans.

The district court allowed Governor Bob Riley to intervene on behalf of the people

of Alabama, and Senator Lowell Barron, Senator Hank Sanders, and

Representative Seth Hammett also intervened in their individual capacities.

Defendants filed a motion for judgment on the pleadings and Senator Lowell

Barron, Senator Hank Sanders, and Representative Seth Hammett (“Appellees”)

filed motions to dismiss.

      The district court ordered a bench trial on the issue of res judicata, since the

motions to dismiss and the motion for judgment on the pleadings argued that

Appellants’ claims were barred by previous litigation that challenged the

constitutionality of Alabama’s 2001 redistricting plans. After reviewing the

extensive record in this case, the district court issued an order dismissing

Appellants’ claims based on res judicata. Gustafson v. Johns, 434 F.Supp. 2d 1246

(S.D. Ala. 2006). In the order, the district court set forth a detailed history of the

litigation surrounding Alabama’s 2001 redistricting plans, and the key players

involved in that litigation. Id. at 1248-53. The most pertinent of these facts are as

follows.



                                            3
      In June 2001, two separate lawsuits were filed in federal court, Barnett v.

Alabama and Montiel v. Davis. Both lawsuits alleged that Alabama’s legislature

had failed to redraw its districts. Barnett and Montiel were assigned to the same

district court judge. After these lawsuits were filed, Alabama’s legislature

convened a special session to redraw the legislative districts, and the redistricting

plans were passed by Alabama’s Legislature, signed by the Governor, and passed

into law. In light of these developments, Alabama’s Attorney General moved to

dismiss both the Barnett and Montiel lawsuits, and the district court ordered the

plaintiffs in both cases to respond to the Attorney General’s motions. The Montiel

plaintiffs responded by amending their complaint and directly challenging the

constitutionality of the redistricting plans. The Barnett plaintiffs did not amend

their complaint, and the district court dismissed the case as moot. The Montiel

plaintiffs alleged that the 2001 redistricting plans violated the constitutional

requirements of one-person, one-vote and constituted illegal racial gerrymandering

by overpopulating white majority districts and thereby diluting their vote. The

district court granted summary judgment in favor of the defendants on both claims.

Montiel v. Davis, 215 F.Supp. 2d 1279, 1288-89 (S.D. Ala. 2002).

      In the case before this Court, the district court found that the lawsuit was

being managed by a Litigation Management Committee (“Committee”) composed



                                           4
of Jerry Lathan, Senator Stephen French, and Marty Connors. All three had ties to

the Republican Party of Alabama. The Committee instigated the present lawsuit

after the Supreme Court summarily affirmed a three-judge federal court’s decision

that Georgia’s state legislative reapportionment plans violated the one person, one

vote principle. See Larios v. Cox, 542 U.S. 947, 124 S. Ct. 2806, 159 L. Ed. 2d

831 (2004). The district court found that the Committee recruited the plaintiffs,

hired the lawyers, raised funds, and made litigation decisions. The district court

also found that Lathan, French, and Connors were the driving forces behind both

the Montiel and Barnett lawsuits.2 After conducting thorough analysis, the district

court concluded Appellants’ claims were barred based on the doctrine of res

judicata given the Montiel suit.

                                 STANDARD OF REVIEW

       We review de novo a district court’s conclusion to apply res judicata. Equal

Employment Opportunity Comm’n v. Pemco Aeroplex, Inc., 383 F.3d 1280, 1285

(11th Cir. 2004). The factual determinations underlying this conclusion are

accepted on review unless clearly erroneous. Richardson v. Alabama State Bd. of

Educ., 935 F.2d 1240, 1244 (11th Cir. 1991).



       2
         While the Barnett case was not resolved on the merits, the district court found that the
persons driving the Barnett lawsuit were fully aware of Montiel suit and acquiesced to the final
judgment in Montiel.

                                                5
                                   JURISDICTION

      As an initial matter, Appellees argue that this Court lacks jurisdiction to hear

this appeal, because the United States Supreme Court has exclusive jurisdiction

pursuant to 28 U.S.C. § 1253 to hear appeals from three-judge federal courts.

Section 1253 states:

      Direct appeals from decisions of three-judge courts. Except as otherwise
      provided by law, any party may appeal to the Supreme Court from an order
      granting or denying, after notice and hearing, an interlocutory or permanent
      injunction in any civil action, suit or proceeding required by any Act of
      Congress to be heard and determined by a district court of three judges.


28 U.S.C. § 1253. However, in MTM, Inc. v. Baxley, 420 U.S. 799, 804, 95 S. Ct.

1278, 1281, 43 L. Ed. 2d 636 (1975), the United States Supreme Court carved out

an exception to § 1253, holding “that a direct appeal will lie to this Court under §

1253 from the order of a three-judge federal court denying interlocutory or

permanent injunctive relief only where such order rests upon resolution of the

merits of the constitutional claim presented below.” Appellees argue that in 1976,

a year after MTM was decided, Congress repealed the three-judge federal court

statute and enacted a new three-judge federal court statute. However, MTM has not

been overruled, and we are therefore required to follow its holding. Since a finding

that a plaintiff’s claim is barred by res judicata is not a resolution on the merits of

the constitutional claim, we have jurisdiction to hear this appeal. See Cash v.

                                            6
Barnhart, 327 F.3d 1252, 1256 (11th Cir. 2003) (stating that a decision based on

res judicata is not a decision on the merits).3

                                         DISCUSSION

       In order for res judicata to bar Appellants’ claims “four elements must be

present: (1) there must be a final judgment on the merits, (2) the decision must be

rendered by a court of competent jurisdiction, (3) the parties, or those in privity

with them, must be identical in both suits; and (4) the same cause of action must be

involved in both cases.” I.A. Durbin, Inc. v. Jefferson Nat’l Bank, 793 F.2d 1541,

1549 (11th Cir. 1986). The parties do not dispute that the first two elements have

been met. Appellants dispute the district court’s findings that the third and fourth

elements were met. The district court found that the Appellants were in privity

with the Montiel plaintiffs under the doctrine of virtual representation. The district

court also found that this case and the Montiel case had the same causes of action.

       A.      Virtual Representation

       The Montiel plaintiffs and the plaintiffs in this case are not identical;

therefore, the plaintiffs in the two cases must be in privity for res judicata to apply.


       3
          Appellees also argue that this case is governed by St. John v. Wisconsin Employment
Relations Bd., 340 U.S. 411, 71 S. Ct. 375, 95 L. Ed. 386 (1951). In St. John, the Supreme Court
did hear a direct appeal after a three-judge federal court barred a claim based on res judicata, and
this case has not been explicitly overruled. However, MTM, which was decided twenty four
years after St. John, carved out an the exception to § 1253 and provides the Supreme Court’s
most current reasoning on this issue.

                                                 7
Privity applies when a person, though not a party to the suit, has his interests

adequately represented by a plaintiff in the suit. Pemco, 383 F.3d at 1286. We

have recognized that privity can exist under the doctrine of virtual representation,

and the district court found that the facts established that Appellants in this case

were virtually represented by the Montiel Plaintiffs.

      The doctrine of virtual representation “supports a finding of privity ‘when

the respective interests are closely aligned and the party to the prior litigation

adequately represented those interests.’” Jaffree v. Wallace, 837 F.2d 1461, 1467

(11th Cir. 1988)(citation omitted). We have employed the following factors to

determine if virtual representation exists between parties: (1) participation in the

first litigation, (2) apparent consent to be bound, (3) apparent tactical maneuvering,

and (4) close relationships between the parties and non-parties. Id. All of these

factors need not be found; “rather, we examine [the factors] in concert to determine

whether there is virtual representation.” Pemco, 383 F.3d at 1287. “Whether or

not a party is a virtual representative of another is a question of fact.” Id.

      Having reviewed both the district court’s order and the record, we cannot

say that the district court clearly erred in finding that Appellants were virtually

represented by the Montiel Plaintiffs. The district court engaged in an exceedingly

thorough analysis of the specific facts of this case and correctly applied them to the



                                            8
virtual representation factors, and we find no clear error.4

       However, we will further discuss Appellants’ argument that the district court

erred by rejecting this Court’s requirement that “legal accountability” exists

between parties and non-parties for virtual representation to apply. We have stated

that for virtual representation to apply, the party to the prior lawsuit has to be

“legally accountable” to the party in the subsequent lawsuit. Pemco, 383 F.3d at

1289. We described legal accountability applying to the following relationships:

“estate beneficiaries bound by administrators, presidents and sole stakeholders by

their companies, parent corporation by their subsidiaries, and a trust beneficiary by

the trustee.” Pollard v. Cocknell, 578 F.2d 1002, 1008-09 (5th Cir. 1978).5

       The Montiel plaintiffs were not legally accountable to Appellants as

contemplated in Pollard. However, the district court made a distinction between

private law issues and public law issues. The district court concluded that

redistricting “is a public action that has only an indirect impact on a plaintiff’s

interest.” Gustafson, 434 F.Supp. 2d at 1257. The district court held that therefore

       4
          Appellants argue that the district court improperly applied the control theory in finding
privity between the parties. However, the district court did not use the control theory in
establishing privity; rather, it employed the theory of virtual representation.
       5
          In Bonner v. City of Prichard, Alabama, 661 F.2d 1206, 1209 (11th Cir. 1981)(en
banc), this court adopted as binding precedent all decisions of the former Fifth Circuit handed
down prior to October 1, 1981.



                                                 9
a plaintiff need not have legal accountability to a plaintiff in a subsequent lawsuit

for virtual representation to apply. Gustafson, 434 F.Supp. 2d 1257 n.7. This

holding is consistent with United State Supreme Court and this Circuit’s case law.

      In Richards v. Jefferson County, Alabama, 517 U.S. 793, 803, 116 S Ct.

1761, 1768, 135 L. Ed. 2d 76 (1996), the Supreme Court distinguished between

private causes of action and “other public action that has only an indirect impact on

[a plaintiffs] interests.” This Circuit, citing Richards, has also acknowledged the

difference between the two types of actions and stated that in public law actions the

Supreme Court has suggested “that there is less preclusion protection for a plaintiff

who complain[s] about . . . [a] public action that has only an indirect impact on his

interests.” Pemco, 383 F.3d at 1289. Since both this case and Montiel case

involve the public law issue of challenging Alabama’s redistricting plans, we find

that the district court did not err in holding that the plaintiffs in the two cases need

not have had a legally accountable relationship for res judicata to apply.

      B.     Same Causes of Action

      Res judicata will only apply if the same causes of action were brought in

both cases. The same causes of action “extends not only to precise legal theory

presented in the previous litigation, but to all legal theories and claims arising out

of the same ‘operative nucleus of fact.’” Olmstead v. Amoco Oil Co., 725 F.2d 627,



                                           10
632 (11th Cir. 1984). Claims filed in a second lawsuit are barred if they could

have been raised in the earlier proceeding. Davila v. Delta Air Lines, Inc., 326

F.3d 1183, 1187 (11th Cir. 2003). “The principal test for determining whether the

causes of action are the same is whether the primary right and duty are the same in

each case.” Durbin, 793 F.2d at 1549. In determining whether the causes of action

are the same, we look to the substance of the action, not their form. Id.

        Applying these principles to this case, we find that the district court did not

err in finding that the causes of action in the Montiel case involve the same causes

of action presented in this case. The causes of action in both cases arose out of the

same “operative nucleus of fact” - the 2001 redistricting plans. Furthermore, the

claims in both cases involve the same “primary right and duty” in that the causes of

action sought to invalidate the redistricting plans because the population deviations

within the plans created a situation where votes were given unequal weight. While

Appellants argue that their partisan gerrymandering claim could not have been

brought by the Montiel Plaintiffs since they resided in different districts, the district

court held, and we agree, that the partisan gerrymandering claim could have been

brought before. Appellants did not raise their partisan gerrymandering claim with

respect to specific districts; rather, their claim challenged the redistricting plan in

its entirety. In both cases, all the claims have the same substance in that they



                                            11
challenge the redistricting plans based on population deviations. Therefore, the

application of res judicata is appropriate.6

       Accordingly, we find that the district court did not err in finding that res

judicata barred Appellants’ claims and affirm.

       AFFIRMED.




       6
           Appellants also argue that they should be allowed to challenge Alabama’s redistricting
plans on partisan gerrymandering grounds, because the law surrounding partisan gerrymandering
claims had become more clearly defined in light of the Supreme Court’s summary affirmance in
Larios v. Cox. While this Court has stated that res judicata is inappropriate when there has been a
substantial change in the facts or law, Jaffree, 837 F.2d at 1469, the decision in Larios does not
constitute a substantial change in the law. See Larios v. Cox, 300 F.Supp. 2d 1320, 1353 (N.D.
Ga. 2004).

                                                12
