                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-2545


LOUISE ROOT,

                Plaintiff – Appellant,

          v.

COUNTY OF FAIRFAX,

                Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.    Claude M. Hilton, Senior
District Judge. (1:12-cv-01148-CMH-IDD)


Submitted:   September 30, 2013           Decided:   October 10, 2013


Before WILKINSON, KING, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Richard E. Gardiner, Fairfax, Virginia; Paul A. Prados, DAY &
JOHNS, PLLC, Fairfax, Virginia, for Appellant.       Karen L.
Gibbons, OFFICE OF THE COUNTY ATTORNEY, Fairfax, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Louise Root appeals from the district court’s order

dismissing       her   civil      action      against      the       County    of     Fairfax

(“County”) seeking just compensation under the Fifth Amendment

for the alleged taking of Root’s personal property for public

use.     The district court granted the County’s motion to dismiss

based on res judicata and the statute of limitations.                                 Finding

no error in the dismissal, we affirm.

            In December 2004, the County seized several of Root’s

companion animals and petitioned for a hearing on their welfare.

After numerous proceedings in the Fairfax County district and

circuit    courts,     it   was    determined           that    Root   was     entitled   to

return of the animals.             In 2008, Root filed a complaint in the

Fairfax    County      Circuit     Court      against          the   County     and    eight

individual defendants by whom her animals had been adopted.                                In

the 2008 action, Root sought an injunction ordering the return

of the animals to her under Va. Code Ann. § 8.01-620 and alleged

a Fifth Amendment due process violation under the Fourteenth

Amendment    pursuant       to    42   U.S.C.       §   1983    (2006).        The     County

removed    the    action    to    federal         district      court.        The   district

court    dismissed     Root’s     §    1983       due   process      claim     against    the

County and remanded the claim for injunctive relief to the state

court.    Root appealed the district court’s order and the County

filed a cross-appeal of the portion of the order remanding the

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claim for injunctive relief.               We affirmed the district court’s

order, concluding that there was no due process violation and

that the court did not abuse its discretion in declining to

exercise supplemental jurisdiction.

             After the case was remanded to the circuit court, the

County was dismissed as a party.                   The circuit court permitted

Root to amend her 2008 complaint to convert it to an action in

detinue against the four remaining individual defendants to whom

five   of    the    dogs   had    been    transferred          by    the   County.    In

September 2011, Root’s motion for summary judgment against the

individual defendants was granted.                  The court determined that

Root was entitled to possession of the animals and ordered a

hearing to determine which of the animals was living and to

direct      that    any    living      animals     in    the        possession   of   the

individual defendants be returned to Root.                       Only one animal was

living and it was returned to Root.

             In October 2012, Root filed a new complaint against

the County in the Eastern District of Virginia.                            The complaint

alleged      that     upon       the     Fairfax        County        Circuit     Court’s

determination that the individual defendants were not lawfully

entitled     to    possession       of   Root’s    animals,          and   the   animals,

except one, were not returned to her and she did not receive

compensation for their value as personal property, the County

violated the Takings Clause of the Fifth Amendment by taking her

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private     property       for    a     public        purpose           and     without     just

compensation.

            The County filed a Fed. R. Civ. P. 12(b)(6) motion to

dismiss for failure to state a claim based on res judicata and

the statute of limitations.               The district court held a hearing

on   the   motion    and     ruled       from       the     bench        that    Root’s     2012

complaint    was     barred       by    res        judicata        and    the     statute    of

limitations.        The court dismissed the action and Root timely

appealed.

            Root argues that there was no previous judgment on

whether     there    was    a     proper           taking        that    entitled     her     to

compensation; the 2008 Fifth Amendment due process claim does

not involve her Fifth Amendment Takings Clause claim; and the

takings     claim    did    not        arise       out      of     the    same     series     of

transactions as the 2008 due process claim, nor did it arise out

of the same core of operative facts.                        She further asserts that

the takings claim was not ripe until she learned of the animals’

demise.

            By   “precluding          parties       from     contesting         matters     that

they have had a full and fair opportunity to litigate,” the

doctrine of res judicata minimizes “the expense and vexation

attending multiple lawsuits, conserve[s] judicial resources, and

foster[s]     reliance       on       judicial        action        by        minimizing     the

possibility of inconsistent decisions.”                          Taylor v. Sturgell, 553

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U.S. 880, 892 (2008) (internal quotations omitted).                  “However,

res judicata does not bar claims that did not exist at the time

of the prior litigation.”         Meekins v. United Transp. Union, 946

F.2d 1054, 1057 (4th Cir. 1991).          A party invoking res judicata

must establish three elements: (1) a previous final judgment on

the   merits,   (2)   identical    parties     in   the     two   actions,    and

(3) the claims in the later action are based upon the same cause

of action in the earlier proceeding.           In re Varat Enters., Inc.,

81 F.3d 1310, 1315 (4th Cir. 1996).

           Root contends that there is no final judgment on the

takings   claim,   therefore   there     is   no    final    judgment    on   the

merits.   However, this raises the same issue as the third prong:

whether the new claim arises from a series of transactions or

operative core facts that were the same as those involved in the

earlier proceeding.     If the claim is a new claim, then there is

not a judgment on it.      Identical claims exist if the two claims

“arise out of the same transaction or series of transactions or

the same core of operative facts.”            Pueschel v. United States,

369 F.3d 345, 355 (4th Cir. 2004).            While typically it is a new

factual development that gives rise to a fresh cause of action,

see, e.g., Lawlor v. Nat’l Screen Serv. Corp., 349 U.S. 322, 328

(1955), changes in law can also have that effect.                       A second

action based on a newly applicable law may be justified and



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defeat res judicata.      See Clodfelter v. Republic of Sudan, 720

F.3d 199, 210-11 (4th Cir. 2013).

            However, the bar includes those claims that “existed

at the time of the first suit and ‘might have been offered’ in

the same cause of action . . . .”          Aliff v. Joy Mfg. Co., 914

F.2d 39, 43-44 (4th Cir. 1990).         “Newly articulated claims based

on   the   same   [transactional]   nucleus   of   facts   may    still   be

subject to a res judicata finding if the claims could have been

brought in the earlier action.”         Laurel Sand & Gravel, Inc. v.

Wilson, 519 F.3d 156, 162 (4th Cir. 2008) (internal quotation

marks omitted).

            Root’s Takings Clause claim is not based on a newly

applicable law, nor is it a newly cognizable claim.              She could

have filed this claim at the time she filed for relief in 2008

under § 1983.     The fact that the animals at issue in this action

have died is not an operative fact because the Takings Clause

claim was an available remedy at the time of the 2008 filing.

The fact that the animals have now died is unrelated to the

County’s initial removal or taking of the animals.               The taking

was the removal of the animals, not their subsequent death.

            We conclude that the core operative facts have not

changed since the denial of the original claim and conclude that

the Takings Clause claim arises from operative facts that are

not separate and distinct from those underlying Root’s initial

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claim in 2008.    Therefore, the new claim is not a new cause of

action.

            In light of the holding that Root’s Fifth Amendment

claim under the Takings Clause is barred by res judicata, we

need not consider the district court’s additional holding that

the claim is also barred by the statute of limitations.                           We

therefore    affirm   the    district         court’s    order    dismissing     the

action solely on the basis of res judicata.                      We dispense with

oral   argument   because        the    facts   and     legal    contentions     are

adequately   presented      in    the    materials      before    this   court   and

argument would not aid the decisional process.

                                                                          AFFIRMED




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