1

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 22-7002 September Term, 2022

 FILED ON: JULY 14, 2023

KIM KEISTER,

APPELLANT

v.

AMERICAN ASSOCIATION OF RETIRED PERSONS, INC.,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:19-cv-02935)

Before: SRINIVASAN, Chief Judge, WILKINS, Circuit Judge, and RANDOLPH, Senior 

Circuit Judge

J U D G M E N T

This appeal was considered on the record from the United States District Court for the District 

of Columbia and on the briefs and oral arguments of the parties. The panel has afforded the issues 

full consideration and has determined that they do not warrant a published opinion. See D.C. CIR.

R. 36(d). For the reasons stated below, it is

ORDERED AND ADJUDGED that the judgment of the district court be AFFIRMED. 

* * *

Appellant Kim Keister filed suit in the District of Columbia District Court against the 

American Association of Retired Persons (“AARP”), alleging misrepresentation and interference

based on AARP misleading Keister regarding his signing of a severance agreement and how it 

would impact his ability to seek Long Term Disability Benefits, in violation of the Employee 

Retirement Income Security Act of 1974 (“ERISA”). The District Court dismissed the claim 
2

under res judicata. We affirm, as Keister’s action is barred by claim preclusion.

I.

In April 2004, AARP hired Keister as a news and policy executive editor. During his 

employment, Keister suffered a stroke. As a result, Keister lost the ability to understand simple 

sentences and would “consistently make word-choice and grammatical mistakes.” On August 24, 

2016, Keister began visiting a speech pathologist to improve his language loss and cognitive skills 

to return to work. But when Keister attempted to return to work, he quickly realized that he had 

not regained his cognitive skills to their pre-stroke functionality and requested additional time to 

recover.

On February 3, 2017, Keister applied for short term disability and was approved by Aetna on 

April 21, 2017. Before Keister’s short term disability benefits expired, he applied to Aetna for 

Long Term Disability Benefits. On July 18, 2017, Aetna denied his application for Long Term 

Disability Benefits because it “lacked sufficient evidence to prove Mr. Keister was unable to 

work.” Keister appealed the denial of his application for long term disability benefits, but Aetna 

upheld its decision on June 13, 2018.

Before Aetna’s decision on Keister’s appeal of his denial of Long Term Disability Benefits, 

AARP officials presented Keister with a Severance Agreement. Keister signed the Agreement, 

including its “general release of claims” provision in exchange for severance pay. The Release 

provided:

In consideration of the promises and benefits contained in this Agreement . . . you 

hereby fully and forever waive, discharge, and release AARP . . . from any and all 

claims for damages, personal injuries, discrimination, retaliation, reinstatement, or 

other relief that you may have . . . based upon your employment, separation, and/or 

any event or transaction that occurred prior to your signing this Agreement.

Keister v. AARP, No. 1:19-CV-2935-FYP, 2021 WL 5865444, at *2 (D.D.C. Dec. 9, 2021)

(“Keister II”). The Release also precluded “any other legal or equitable claim of any kind, 

whether based upon statute, contract, tort, common law, ordinance, regulation or public 

policy.” Id. (emphasis added). In addition, the Release provided:

It is expressly agreed and understood that this Agreement constitutes a GENERAL 

RELEASE. You understand that you are releasing claims that you may not know 

about. This is your knowing and voluntary intent, even though you recognize that 

someday you might learn that some or all of the facts you currently believe to be 

true are untrue and even though you might then regret having signed this release. It 

is further agreed that this consideration shall settle and compromise any claims you 

have, or may have, whether known or unknown, that existed prior to the date of 
3

your signature.

Id. Keister then acknowledged that he had not “relied upon any representation or statement, 

written or oral, not set forth” in the Agreement. Id. at *2 n.2. After this acknowledgment, Keister 

signed the Severance Agreement.

II.

Four months after Keister’s appeal for Long Term Disability Benefits was denied by Aetna, 

he filed a lawsuit against Aetna and AARP Benefits Committee, a wholly owned subsidiary of 

AARP, alleging that both entities wrongfully denied his Long Term Disability Benefits under 

ERISA. See Keister v. AARP Benefits Committee, 410 F. Supp. 3d 244, 248 (D.D.C. 2019) 

(“Keister I”). Keister alleged that “AARP representatives knew [his] benefits had been denied 

and did not inform him that he would need to file his appeal before executing his severance 

agreement.” Id. at 258. In addition, Keister argued that he “may have been misled with regard to 

what he was signing.” See id. at 257. In response, AARP Benefits Committee moved for 

summary judgment, arguing that Keister’s claim was barred because he waived his claim for 

benefits when he signed the Severance Agreement and received pay in exchange for his general 

release. Id. at 249. Aetna filed a separate motion arguing the same. Id.

The court granted summary judgment in favor of AARP Benefits Committee and Aetna, see 

id. at 261, reasoning that “by signing the separation agreement, Keister waived his right to bring 

[his] claim for long-term disability benefits, which means that his case cannot proceed as a matter 

of law,” id. at 247. The court also noted that there was “no evidence of a fraudulent 

misrepresentation.” Id. at 261.

Before Keister received a final judgment in Keister I, he brought the instant case, Keister II, 

against AARP. Keister alleged that AARP (1) misrepresented the effect of the Severance 

Agreement on his pursuit for Long Term Disability Benefits, and (2) intentionally interfered with 

his attainment of those benefits. Keister contends that AARP’s human resources representatives 

were aware of his medical conditions, knew of his pursuit of Long Term Disability Benefits, and 

breached their fiduciary duties to disclose to him how signing the Severance Agreement would 

impact his pursuit of Long Term Disability Benefits on appeal. AARP moved to dismiss the 

complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) because his 

claims were barred by the doctrines of claim and issue preclusion. The District Court 

agreed. Keister timely appealed. 

III.

The issue on appeal is whether Keister’s ERISA claim alleging misrepresentation was barred 

by claim or issue preclusion, which collectively are referred to as the doctrine of res judicata. See 

Lucky Brand Dungarees, Inc. v. Marcel Fashions Grp., Inc., 140 S. Ct. 1589, 1594 (2020). “The 
4

doctrine of res judicata prevents repetitious litigation involving the same cause of action or same 

issues.” I.A.M. Nat’l Pension Fund, Benefit Plan A v. Indus. Gear Mfg. Co., 723 F.2d 944, 946 

(D.C. Cir. 1983). Claim preclusion, specifically, holds that “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.” Drake v. F.A.A., 291 F.3d 59, 66 (D.C. Cir. 2002) (quoting Parklane Hosiery Co. v. 

Shore, 439 U.S. 322, 326 n. 5 (1979)). Two cases trigger the same cause of action when they 

involve the “same ‘nucleus of fact.’” Page v. United States, 729 F.2d 818, 820 (D.C. Cir. 1984)

(quotations omitted). And non-party “privies” are those who share a “substantive legal 

relationship between the person to be bound and a party to the judgment.” Taylor v. Sturgell, 553 

U.S. 880, 894 (2008) (cleaned up). Thus, “a final judgment on the merits of an action precludes 

the parties or their privies from relitigating issues that were or could have been raised in that 

action.” Allen v. McCurry, 449 U.S. 90, 94 (1980) (emphasis added).

Keister argues that the ERISA claim raised in this case and the claims raised in Keister I do 

not share the “same nucleus of fact” because this claim relies on misrepresentations from 

“discussions between AARP human resources and [him]” as opposed to AARP Benefits 

Committee members. He further argues that Keister I only required the court to look at “the 

severance agreement language [which was interpreted] in such a way [as] to preclude [Keister 

from] continuing with the appeal process and [regaining] ERISA rights associated with the denial 

of a long-term disability benefits.” Appellant’s Br. 8.

First, we must determine whether the merits in Keister I and this claim are based on the same 

cause of action. Contrary to Keister’s contention that the facts are dissimilar, he made the same 

misrepresentation arguments in Keister I. Specifically, he argued that “AARP representatives 

knew [his] benefits had been denied and did not inform him that he would need to file his appeal 

before executing his severance agreement.” Keister I, 410 F. Supp. 3d at 258. In addition, Keister 

argued that he “may have been misled with regard to what he was signing.” Id. at 257. In Keister 

II, he argued the same facts: (1) “AARP human resource representative[s] intentionally convinced 

[him] into signing the severance agreement,” and (2) that “AARP misled [him] knowing his 

intentions to secure his benefits and without informing him how his rights would be negatively 

impacted if he signed the severance agreement.” J.A. 9–10. In addition, Keister alleged “AARP 

representatives who were working with [him] at the time misrepresented to [him] the effect of the 

severance agreement on his ERISA rights.” Id. at 9.

Keister could have brought the same claim based on the conduct of AARP human resource 

representatives against AARP in Keister I. Nonetheless, the allegations in the complaint and the 

facts relied on in the judgment in Keister I make clear that the underlying facts are the same. Thus, 

Keister’s current claims implicate the “same cause of action” as Keister I and derive from a 

common “nucleus.”

Second, we must determine whether Keister brought this action against the same parties or 

their non-party “privies” as was brought in Keister I.
5

Keister contends that AARP was not a party in Keister I, but his opening brief did not argue 

that AARP was not in privity with AARP Benefits Committee. In its responsive brief, see 

Appellee Br. 12, AARP argued that the District Court in Keister I had previously found that the 

AARP Benefits Committee is a wholly owned business subsidiary of AARP, and thus the AARP 

and AARP Benefits Committee are in privity. Keister did not file a reply brief and has never 

rebutted this contention, either factually or legally. Accordingly, Keister forfeits any argument 

that AARP and AARP Benefits Committee are not in privity. See Al-Tamimi v. Adelson, 916 F.3d 

1, 6 (D.C. Cir. 2019) (noting a party forfeits an argument by failing to raise it in the opening brief 

or by only mentioning it “in the most skeletal way”). 

* * *

For the foregoing reasons, we affirm the District Court’s grant of the AARP’s Motion to 

Dismiss because Keister’s lawsuit is barred by claim preclusion. 

Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed 

to withhold issuance of the mandate herein until seven days after resolution of any timely petition 

for rehearing or rehearing en banc. See FED. R. CIV. P. 31(b); D.C. CIR. R. 41(a)(1). 

So Ordered.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY: /s/

Daniel J. Reidy

Deputy Clerk