1

11-494

Overview Books, LLC v. United States

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED

ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE

PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A

DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX 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.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

New York, on the 19th 4 day of September, two thousand eleven.

5

6 PRESENT: DENNIS JACOBS,

7 Chief Judge,

8 ROBERT A. KATZMANN,

9 DEBRA ANN LIVINGSTON,

10 Circuit Judges.

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13 OVERVIEW BOOKS, LLC, LEV TSITRIN, 

14

15 Plaintiffs-Appellants,

16

17 -v.- 11-494

18

19 THE UNITED STATES OF AMERICA, THE

20 LIBRARY OF CONGRESS, JAMES H.

21 BILLINGTON, as the LIBRARIAN OF

22 CONGRESS,

23

24 Defendants-Appellees.

25

26

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2

1

2 FOR APPELLANTS: Norman J. Finkelshteyn

3 East Brunswick, NJ

4

5 FOR APPELLEES: John Vagelatos (Varuni Nelson, on the

6 brief),

7 Assistant United States Attorney, for

8 Loretta E. Lynch, United States Attorney, 

9 Eastern District of New York,

10 Brooklyn, NY

11

12

13

14 Appeal from a judgment of the United States District

15 Court for the Eastern District of New York (Vitaliano, J.)

16 granting Appellees’ motion to dismiss and dismissing

17 Appellants’ complaint.

18

19 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

20 AND DECREED that the district court’s judgment is AFFIRMED.

21

22 Appellants appeal from an order by the district court

23 dismissing their complaint with prejudice for failure to

24 state a claim on res judicata and collateral estoppel

25 grounds. We assume the parties’ familiarity with the

26 underlying facts, the procedural history, and the issues

27 presented for review.

28

29 We review de novo a district court’s dismissal of a

30 complaint under Federal Rule of Civil Procedure 12(b)(6). 

31 Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 124 (2d

32 Cir. 2010). We also review de novo a district court’s

33 application of res judicata and collateral estoppel

34 principles. Legnani v. Alitalia Linee Aeree Italiane,

35 S.P.A., 400 F.3d 139, 141 (2d Cir. 2005) (per curiam) (res

36 judicata); Purdy v. Zeldes, 337 F.3d 253, 258 (2d Cir. 2003)

37 (collateral estoppel).

38

39 [1] “Under the doctrine of res judicata, or claim

40 preclusion, [a] final judgment on the merits of an action

41 precludes the parties or their privies from relitigating

42 issues that were or could have been raised in that action.” 

43 EDP Med. Computer Sys., Inc. v. United States, 480 F.3d 621,

44 624 (2d Cir. 2007) (internal quotation marks omitted). Res
3

1 judicata will bar subsequent litigation if the “earlier

2 decision was (1) a final judgment on the merits, (2) by a

3 court of competent jurisdiction, (3) in a case involving the

4 same parties or their privies, and (4) involving the same

5 cause of action.” Id. (quoting In re Teltronics Servs.,

6 Inc., 762 F.2d 185, 190 (2d Cir. 1985)). The decision of

7 the Court of Federal Claims satisfies each of these

8 conditions. First, the court’s dismissal under Rule

9 12(b)(6) constituted an adjudication on the merits. See

10 Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 399

11 n.3 (1981). Second, the issue of jurisdiction was fully and

12 fairly litigated before the Court of Federal Claims. See

13 Stone v. Williams, 970 F.2d 1043, 1057 (2d Cir. 1992)

14 (noting that “principles of preclusion apply equally to

15 jurisdictional matters”). Consequently, we lack “the power

16 to inquire again into that jurisdictional fact.” Corbett v.

17 MacDonald Moving Servs., Inc., 124 F.3d 82, 88 (2d Cir.

18 1997) (internal quotation marks omitted). Third, because

19 the Library of Congress and the Librarian of Congress are in

20 privity with the United States government, the prior

21 litigation in the Court of Federal Claims involved the same

22 parties or their privies as the current action. See, e.g.,

23 Jones v. Dep’t of Army Bd. For Correction of Military

24 Records, No. 99 CIV 4423 DC, 2000 WL 890377, at *3 (S.D.N.Y.

25 June 30, 2000); Waldman v. Vill. of Kiryas Joel, 39 F. Supp.

26 2d 370, 382 (S.D.N.Y. 1999), aff’d, 207 F.3d 105 (2d. Cir.

27 2000); see also Robinson v. Overseas Military Sales Corp.,

28 21 F.3d 502, 510 (2d Cir. 1994) (noting that an “action

29 against a federal agency or federal officers in their

30 official capacities is essentially a suit against the United

31 States”). Finally, the complaint in this case asserts the

32 same cause of action as Appellants’ prior complaint in the

33 Court of Federal Claims since the claims in each case have

34 identical factual predicates--the rejection of Appellants’

35 book from the Library of Congress’s Cataloging in

36 Publication (“CIP”) program. See Herendeen v. Champion

37 Int’l Corp., 525 F.2d 130, 133-34 (2d Cir. 1975). 

38 Appellants’ claims are therefore precluded by res judicata. 

39 

40

41 [2] A party is collaterally estopped from raising an issue

42 if “(1) the identical issue was raised in a previous

43 proceeding; (2) the issue was actually litigated and decided

44 in the previous proceeding; (3) the party had a full and
4

1 fair opportunity to litigate the issue; and (4) the

2 resolution of the issue was necessary to support a valid and

3 final judgment on the merits.” Interoceanica Corp. v. Sound

4 Pilots, Inc., 107 F.3d 86, 91 (2d Cir. 1997) (internal

5 quotation marks omitted). Appellants’ First and Fifth

6 Amendment allegations in this case were raised in nearly

7 identical form before the Court of Federal Claims (where

8 Appellants had a full and fair opportunity to litigate), and

9 were actually decided by that court. Moreover, the court’s

10 resolution of the First and Fifth Amendment issues relevant

11 to Appellants’ claims was not mere dicta; it was a necessary

12 element of the court’s conclusion that Appellants did not

13 have a “right” or “entitlement” to participate in the CIP

14 program of which they were deprived in violation of the

15 Takings Clause. 

16

17 For the foregoing reasons, the judgment of the district

18 court is hereby AFFIRMED.

19

20

21 FOR THE COURT:

22 CATHERINE O’HAGAN WOLFE, CLERK

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