1 11-494 Overview Books, LLC v. United States



### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT**



## SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED**
**ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND**  **THIS COURT ’**  **S L** **OCAL R** **ULE 32.1.1.**  **W HEN CITING A SUMMARY ORDER IN A** 
**DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F**  **EDERAL A** **PPENDIX OR AN**
**ELECTRONIC DATABASE (**  **WITH THE NOTATION “**  **SUMMARY ORDER ”).**  **A PARTY CITING A SUMMARY ORDER MUST** 
**SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .**  **At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 19 th** **day of September, two thousand eleven.** 4 5 **PRESENT: DENNIS JACOBS,** 6 **Chief Judge ,**  7 **ROBERT A. KATZMANN,** 8 **DEBRA ANN LIVINGSTON,** 9 **Circuit Judges**

. 10 11 - - - - - - - - - - - - - - - - - - - -X 12 **OVERVIEW BOOKS, LLC, LEV TSITRIN,** 13 14 Plaintiffs-Appellants **,** 15 16 **-v.- 11-494** 17 18 **THE UNITED STATES OF AMERICA, THE** 19 **LIBRARY OF CONGRESS, JAMES H.** 20 **BILLINGTON, as the LIBRARIAN OF** 21 **CONGRESS,** 22 23 Defendants-Appellees

**.** 24 25 26 - - - - - - - - - - - - - - - - - - - -X 272 1 **FOR APPELLANTS:** Norman J. Finkelshteyn 2 East Brunswick, NJ 3 4 **FOR APPELLEES:** John Vagelatos (Varuni Nelson, on the 5 brief ), 6 Assistant United States Attorney, for 7 Loretta E. Lynch, United States Attorney, 8 Eastern District of New York, 9 Brooklyn, NY 10 11 12 13 Appeal from a judgment of the United States District 14 Court for the Eastern District of New York (Vitaliano, J.) 15 granting Appellees’ motion to dismiss and dismissing 16 Appellants’ complaint. 17 18 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 19 **AND DECREED**that the district court’s judgment is **AFFIRMED**

. 20 21 Appellants appeal from an order by the district court 22 dismissing their complaint with prejudice for failure to 23 state a claim on res judicataand collateral estoppel 24 grounds. We assume the parties’ familiarity with the 25 underlying facts, the procedural history, and the issues 26 presented for review. 27 28 We review de novoa district court’s dismissal of a 29 complaint under Federal Rule of Civil Procedure 12(b)(6). 30 Kiobel v. Royal Dutch Petroleum Co. , 621 F.3d 111, 124 (2d 31 Cir. 2010). We also review de novoa district court’s 32 application of res judicata and collateral estoppel 33 principles. Legnani v. Alitalia Linee Aeree Italiane, 34 S.P.A. , 400 F.3d 139, 141 (2d Cir. 2005) (per curiam) (res 35 judicata ); Purdy v. Zeldes , 337 F.3d 253, 258 (2d Cir. 2003) 36 (collateral estoppel). 37 38 **[1]** “Under the doctrine of res judicata , or claim 39 preclusion, [a] final judgment on the merits of an action 40 precludes the parties or their privies from relitigating 41 issues that were or could have been raised in that action.” 42 EDP Med. Computer Sys., Inc. v. United States , 480 F.3d 621, 43 624 (2d Cir. 2007) (internal quotation marks omitted). Res 443 judicatawill bar subsequent litigation if the “earlier 1 decision was (1) a final judgment on the merits, (2) by a 2 court of competent jurisdiction, (3) in a case involving the 3 same parties or their privies, and (4) involving the same 4 cause of action.” Id. (quoting In re Teltronics Servs., 5 Inc. , 762 F.2d 185, 190 (2d Cir. 1985)). The decision of 6 the Court of Federal Claims satisfies each of these 7 conditions. First, the court’s dismissal under Rule 8 12(b)(6) constituted an adjudication on the merits. See 9 Federated Dep’t Stores, Inc. v. Moitie , 452 U.S. 394, 399 10 n.3 (1981). Second, the issue of jurisdiction was fully and 11 fairly litigated before the Court of Federal Claims. See 12 Stone v. Williams , 970 F.2d 1043, 1057 (2d Cir. 1992) 13 (noting that “principles of preclusion apply equally to 14 jurisdictional matters”). Consequently, we lack “the power 15 to inquire again into that jurisdictional fact.” Corbett v. 16 MacDonald Moving Servs., Inc. , 124 F.3d 82, 88 (2d Cir. 17 1997) (internal quotation marks omitted). Third, because 18 the Library of Congress and the Librarian of Congress are in 19 privity with the United States government, the prior 20 litigation in the Court of Federal Claims involved the same 21 parties or their privies as the current action. See, e.g.
, 22 Jones v. Dep’t of Army Bd. For Correction of Military 23 Records , No. 99 CIV 4423 DC, 2000 WL 890377, at *3 (S.D.N.Y. 24 June 30, 2000); Waldman v. Vill. of Kiryas Joel , 39 F. Supp. 25 2d 370, 382 (S.D.N.Y. 1999), aff’d , 207 F.3d 105 (2d. Cir. 26 2000); seealsoRobinson v. Overseas Military Sales Corp.
, 27 21 F.3d 502, 510 (2d Cir. 1994) (noting that an “action 28 against a federal agency or federal officers in their 29 official capacities is essentially a suit against the United 30 States”). Finally, the complaint in this case asserts the 31 same cause of action as Appellants’ prior complaint in the 32 Court of Federal Claims since the claims in each case have 33 identical factual predicates--the rejection of Appellants’ 34 book from the Library of Congress’s Cataloging in 35 Publication (“CIP”) program. See Herendeen v. Champion 36 Int’l Corp. , 525 F.2d 130, 133-34 (2d Cir. 1975). 37 Appellants’ claims are therefore precluded by res judicata

. 38 39 40 **[2]** A party is collaterally estopped from raising an issue 41 if “(1) the identical issue was raised in a previous 42 proceeding; (2) the issue was actually litigated and decided 43 in the previous proceeding; (3) the party had a full and 444 fair opportunity to litigate the issue; and (4) the 1 resolution of the issue was necessary to support a valid and 2 final judgment on the merits.” Interoceanica Corp. v. Sound 3 Pilots, Inc. , 107 F.3d 86, 91 (2d Cir. 1997) (internal 4 quotation marks omitted). Appellants’ First and Fifth 5 Amendment allegations in this case were raised in nearly 6 identical form before the Court of Federal Claims (where 7 Appellants had a full and fair opportunity to litigate), and 8 were actually decided by that court. Moreover, the court’s 9 resolution of the First and Fifth Amendment issues relevant 10 to Appellants’ claims was not mere dicta; it was a necessary 11 element of the court’s conclusion that Appellants did not 12 have a “right” or “entitlement” to participate in the CIP 13 program of which they were deprived in violation of the 14 Takings Clause. 15 16 For the foregoing reasons, the judgment of the district 17 court is hereby **AFFIRMED**

. 18 19 20 FOR THE COURT: 21 CATHERINE O’HAGAN WOLFE, CLERK 22 23