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22-2822-cv

Herschaft v. New York City Campaign Finance Board

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 for the Second Circuit, 

2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 

City of New York, on the 4 3 th day of April, two thousand twenty-three.

4

5 PRESENT: ROBERT D. SACK,

6 RAYMOND J. LOHIER, JR.,

7 SUSAN L. CARNEY,

8 Circuit Judges.

9 ------------------------------------------------------------------

10 ALLEN S. HERSCHAFT,

11

12 Plaintiff-Appellant,

13

14 v. No. 22-2822-cv

15

16 NEW YORK CITY CAMPAIGN FINANCE 

17 BOARD,

18

19 Defendant-Appellee.

20

21 ------------------------------------------------------------------

22 FOR PLAINTIFF-APPELLANT: ALLEN S. HERSCHAFT,

23 pro se, Brooklyn, NY
2

1

2 FOR DEFENDANT-APPELLEE: No appearance

3

4 Appeal from a judgment entered in the United States District Court for the 

5 Eastern District of New York (Kiyo A. Matsumoto, Judge).

6 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 

7 AND DECREED that the judgment of the District Court is AFFIRMED.

8 Allen S. Herschaft, proceeding pro se, appeals from a September 29, 2022 

9 judgment of the United States District Court for the Eastern District of New York 

10 (Matsumoto, J.) dismissing his First and Fourteenth Amendment freedom of

11 association, freedom of speech, and free exercise claims against the New York 

12 City Campaign Finance Board as barred by res judicata, and denying leave to 

13 amend his complaint. Herschaft principally claims that the Board’s reporting 

14 requirements conflict with his Orthodox Jewish beliefs and those of his potential 

15 campaign contributors. We assume the parties’ familiarity with the underlying 

16 facts and the record of prior proceedings, to which we refer only as necessary to 

17 explain our decision to affirm.

18 We begin with the District Court’s dismissal of Herschaft’s claims, which 

19 we review de novo. See Hardaway v. Hartford Pub. Works Dep’t, 879 F.3d 486, 

20 489 (2d Cir. 2018). Although we “construe a pro se complaint liberally to raise 
3

1 the strongest arguments it suggests,” it must nevertheless “state a plausible claim 

2 for relief.” Darby v. Greenman, 14 F.4th 124, 127–28 (2d Cir. 2021) (quotation 

3 marks omitted).

4 The District Court correctly concluded that Herschaft’s claims are barred 

5 by res judicata. “The doctrine of res judicata provides that a final judgment on 

6 the merits of an action precludes the parties or their privies from relitigating 

7 issues that were or could have been raised in that action.” Cho v. Blackberry 

8 Ltd., 991 F.3d 155, 168 (2d Cir. 2021) (quotation marks omitted). Res judicata 

9 “bars later litigation if an earlier decision was (1) a final judgment on the merits, 

10 (2) by a court of competent jurisdiction, (3) in a case involving the same parties or 

11 their privies, and (4) involving the same cause of action.” Id. (quotation marks 

12 omitted). Herschaft does not dispute that his prior lawsuit satisfies these 

13 elements. See Herschaft v. N.Y.C. Campaign Fin. Bd. (“Herschaft I”), 127 F. 

14 Supp. 2d 164 (E.D.N.Y. 2000), aff’d, 10 F. App’x 21 (2d Cir. 2001), cert. denied, 534 

15 U.S. 888 (2001). Instead, he argues that his current complaint includes new 

16 sources of information that support his claim that the Board’s reporting rules 

17 violate his First Amendment rights by requiring him to speak during prayer 

18 services and to request and provide identifying information about his campaign 
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1 contributors in order to qualify for fund matching—all contrary to his faith. We 

2 are not persuaded by this argument. “[R]es judicata applies to issues that were 

3 not raised in the prior action, if they could have been raised in that action,” and it 

4 “applies even where new claims are based on newly discovered evidence.” Cho, 

5 991 F.3d at 168 (quotation marks omitted). We see no reason why Herschaft 

6 could not have pointed to his new sources and claims in Herschaft I. 

7 Accordingly, the District Court did not err in dismissing his claims.

8 Next, we review the District Court’s denial of leave to amend the 

9 complaint for abuse of discretion. See Kim v. Kimm, 884 F.3d 98, 105 (2d Cir. 

10 2018). “Although district judges should, as a general matter, liberally permit pro 

11 se litigants to amend their pleadings, leave to amend need not be granted when 

12 amendment would be futile.” Terry v. Inc. Vill. of Patchogue, 826 F.3d 631, 633 

13 (2d Cir. 2016). “Futility is a determination, as a matter of law, that proposed 

14 amendments would fail to cure prior deficiencies or to state a claim.” In re 

15 Tribune Co. Fraudulent Conv. Litig., 10 F.4th 147, 175 (2d Cir. 2021) (quotation 

16 marks omitted). “To determine whether granting leave to amend would be 

17 futile, we consider the proposed amendments and the original complaint.” Id.
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1 Herschaft takes issue with N.Y.C. Rules, Tit. 52, § 5-05(b), which went into 

2 effect after Herschaft I was decided, and which provides that funds obtained 

3 through lotteries are not eligible for fund matching. But he does not specify 

4 which of his rights (if any) section 5-05(b) violates. Indeed, as the District Court 

5 recognized, he “raises no claims or arguments regarding Section 5-05(b).” App’x 

6 14. Under these circumstances, the District Court did not abuse its discretion in 

denying leave to amend.1 7

8 We have considered Herschaft’s remaining arguments and conclude that 

9 they are without merit. For the foregoing reasons, the judgment of the District 

10 Court is AFFIRMED.

11 FOR THE COURT:

12 Catherine O’Hagan Wolfe, Clerk of Court

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1 We do not consider whether the District Court abused its discretion in denying leave to amend 

to add a Religious Freedom Restoration Act claim or an equal protection claim relating to 

mental illness because Herschaft did not raise those claims in his appellate brief. See Green v. 

Dep’t of Educ., 16 F.4th 1070, 1074 (2d Cir. 2021). We also do not consider whether the District 

Court abused its discretion in denying leave to amend to add a defamation claim because

Herschaft did not raise the claim in the District Court. See Otal Invs. Ltd. v. M/V Clary, 673 F.3d 

108, 120 (2d Cir. 2012). And we do not consider whether the District Court abused its discretion 

in denying leave to amend to add procedural due process claims regarding a missing 

memorandum in Herschaft I and the district court’s decision not to hold a hearing in Herschaft 

v. N.Y.C. Police Dep’t, No. 18-cv-4770, 2018 WL 4861388 (E.D.N.Y. Sept. 28, 2018), because 

questions concerning the adequacy of separate proceedings are not properly before this Court.