                                                                            FILED
                            NOT FOR PUBLICATION                             FEB 13 2013

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


SERGEI PORTNOY; ELENA                             No. 12-15174
PORTNOY,
                                                  D.C. No. 2:11-cv-00264-GEB-
               Plaintiffs - Appellants,           EFB

  v.
                                                  MEMORANDUM*
UNITED STATES OF AMERICA,

               Defendant - Appellee.


                    Appeal from the United States District Court
                        for the Eastern District of California
                   Garland E. Burrell, Jr., District Judge, Presiding

                           Submitted February 11, 2013**

Before:        FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges.

       Sergei Portnoy and Elena Portnoy appeal pro se from the district court’s

judgment dismissing with prejudice their complaint against the United States for

alleged intentional and negligent infliction of emotional distress and violations of


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
the Administrative Procedure Act; the Immigration and Nationality Act; the Civil

Rights Act; and the Fourth, Fifth, and Fifteenth Amendments to the U.S.

Constitution. We have jurisdiction under 28 U.S.C. § 1291. We review de novo

the dismissal of an action on res judicata grounds. Stewart v. U.S. Bancorp,

297 F.3d 953, 956 (9th Cir. 2002). We affirm the district court’s judgment.

      The district court properly dismissed with prejudice the Portnoys’ claims as

being barred by the doctrine of res judicata because the Portnoys raised or could

have raised the same statutory, constitutional, and common-law claims against the

same defendant in a prior federal civil suit that resulted in a final judgment on the

merits. See Portnoy et al. v. United States, No. C-10-1680-KJM (E.D. Cal.

Aug. 19, 2010), summarily aff’d, No. 10-16912 (9th Cir. Nov. 2, 2010) (order); see

also Stewart, 297 F.3d at 956 (“Res judicata, or claim preclusion, prohibits

lawsuits on ‘any claims that were raised or could have been raised’ in a prior

action . . . when there is: ‘(1) an identity of claims; (2) a final judgment on the

merits; and (3) identity or privity between parties.’” (citation omitted) (emphasis in

original)). Case law forecloses the Portnoys’ argument that their prior suit did not

end with a final judgment on the merits. See Hells Cyn. Preserv. Council v. U.S.

Forest Serv., 403 F.3d 683, 686 (9th Cir. 2005) (“‘[F]inal judgment on the merits’




                                            2                                     12-15174
is synonymous with ‘dismissal with prejudice.’”).

      AFFIRMED.




                                         3          12-15174
