    18‐180 
    Grundstein v. Vt. Bd. of Bar Examiners 


                             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 ASUMMARY ORDER@). A PARTY CITING TO 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 for the Second Circuit,
    held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
    New York, on the 24th day of January, two thousand nineteen.

    PRESENT:
                ROSEMARY S. POOLER,
                REENA RAGGI,
                DEBRA ANN LIVINGSTON,
                      Circuit Judges.
    _____________________________________

    Robert Grundstein, Esq.,

                                 Plaintiff-Appellant,

                       v.                                                     18-180

    Vermont Board of Bar Examiners, Keith
    Kasper, Chair, Vermont Supreme Court
    Justices, Paul Reiber, Chief Justice,

                      Defendants-Appellees.
    _____________________________________


    FOR PLAINTIFF-APPELLANT:                            Robert Grundstein, pro se, Morrisville, VT.

    FOR DEFENDANTS-APPELLEES:                           David Boyd, Assistant Attorney General, for
                                                        Thomas J. Donovan, Jr., Attorney General
                                                        of the State of Vermont, Montpelier, VT.
 1         Appeal from a judgment of the United States District Court for the District of Vermont
 2   (Crawford, J.).
 3
 4       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
 5   DECREED that the judgment of said District Court is AFFIRMED.
 6
 7           Appellant Robert Grundstein, pro se, appeals from the December 20, 2017 dismissal of
 8   Grundstein’s second amended complaint with prejudice. Grundstein also moves to (1) amend his
 9   appellate brief with additional legal authority and (2) strike a letter written by defendants-appellees.
10   We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and
11   the issues on appeal.
12
13           As an initial matter, we construe Grundstein’s motion to amend his brief as a letter pursuant
14   to Second Circuit Local Rule 28(j), and, so construed, we consider his additional authority as
15   appropriate. We deny his motion to strike defendants-appellees’ letter to the Court, which
16   provides historical versions of statutes that Grundstein referenced in his reply brief. Parties are
17   required to reproduce statutes, rules, or regulations relied upon in their brief, either in the brief, as
18   an addendum, or in a separate pamphlet. 2d Cir. Local R. 28(f). Grundstein failed to provide
19   copies of these historical statutes, and we decline to strike the defendants-appellees’ provision of
20   copies.
21
22      I.       Mootness
23            Before addressing the merits of the appeal, we briefly address defendants-appellees’
24   argument that the appeal is now moot insofar as Grundstein seeks to overturn the Character and
25   Fitness Committee’s decision. Because Grundstein sought other declaratory and injunctive relief
26   that is not mooted by the Vermont Supreme Court’s decision, this case is not moot. See Calderon
27   v. Moore, 518 U.S. 149, 150 (1996) (“The available remedy . . . does not need to be fully satisfactory
28   to avoid mootness. To the contrary, even the availability of a partial remedy is sufficient to prevent
29   [a] case from being moot.”) (internal citations and quotation marks omitted).
30
31      II.     Younger Abstention and Res Judicata
32           Defendants-appellees alternatively contend that the district court’s dismissal should be
33   affirmed because (1) Younger abstention was proper, or (2) the Rooker-Feldman doctrine and res
34   judicata bar Grundstein’s suit. We need not reach defendants-appellees’ arguments regarding
35   Younger abstention or the Rooker-Feldman doctrine because we affirm the district court’s dismissal
36   of the complaint on the basis of res judicata.
37
38           We may affirm a judgment on grounds “for which there is a record sufficient to permit
39   conclusions of law, including grounds upon which the district court did not rely.” Leon v. Murphy,
40   988 F.2d 303, 308 (2d Cir. 1993). Although the defendants-appellees did not raise res judicata in
41   the district court, “there is ‘no absolute bar’ to the consideration of res judicata claims for the first
42   time on appeal.” King v. Fox, 418 F.3d 121, 131 (2d Cir. 2005) (quoting Salahuddin v. Jones, 992
43   F.2d 447, 449 (2d Cir. 1993)). Given that Grundstein’s claims were essentially identical to those

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 1   he raised in his Vermont Supreme Court appeal, dismissal on the basis of res judicata is “not only
 2   appropriate[,] but virtually mandatory.” Salahuddin, 992 F.2d at 449 (affirming dismissal of
 3   “recycled” claims based on res judicata).
 4
 5            Under the Full Faith and Credit Act, 28 U.S.C. § 1738, a federal court must apply Vermont
 6   res judicata law to Vermont state court judgments. See Hoblock v. Albany Cty. Bd. of Elections,
 7   422 F.3d 77, 93 (2d Cir. 2005) (applying New York res judicata law to a New York judgment). In
 8   Vermont, “a final judgment in previous litigation bars subsequent litigation if the parties, subject
 9   matter, and cause(s) of action in both matters are the same or substantially identical.” Carlson v,
10   Clark, 970 A.2d 1269, 1272–73 (Vt. 2009) (quoting Faulkner v. Caledonia Cty. Fair Ass’n, 869
11   A.2d 103, 107 (Vt. 2004)) (internal quotation marks omitted). “The doctrine bars parties from
12   relitigating, not only those claims and issues that were previously litigated, but also those that could
13   have been litigated in a prior action.” Id. at 1273 (internal quotation marks and citation omitted).
14
15             Here, the parties are the same or substantially identical. “[I]dentity of parties exists where
16   the parties or their privies are involved in both actions.” Pomfret Farms Ltd. P’ship v. Pomfret
17   Assocs., 811 A.2d 655, 660 (Vt. 2002). “A privity relationship generally involves a party so
18   identified in interest with the other party that they represent one legal right.” Id. Grundstein is a
19   litigant in both the federal case and the state case. Further, although neither Kasper nor Reiber
20   were named parties to the state case, Grundstein challenged an order of the Vermont Board of Bar
21   Examiners (“VBBE”), of which Kasper is the chair, and which is an extension of the Vermont
22   Supreme Court. See In re Monaghan, 222 A.2d 665, 669 (Vt. 1966) (“The board of bar examiners
23   . . . serves as an ‘arm’ to this court . . . .”); 4 V.S.A. § 902 (authorizing the Vermont Supreme Court
24   to appoint members of the VBBE). And since both parties are sued in their official capacity, they
25   represent the same legal interest, the Supreme Court of Vermont’s authority to regulate the legal
26   profession. See In re Grundstein, 183 A.3d 574, 581 (Vt. 2018) (“[T]he Vermont Constitution
27   gives [the Vermont Supreme Court] the unique responsibility to regulate the practice of law within
28   this state . . . .”).
29
30           Second, the subject matter and the causes of action are the same or substantially the same.
31   Vermont applies a transactional test to determine if the subject matter and causes of action are the
32   same in both cases. See Faulkner, 869 A.2d at 108–09 (causes of action); Pomfret Farms Ltd.
33   P’ship, 811 A.2d at 658–59 (subject matter). The subject matter and causes of action are the same
34   if the operative facts are the same. See Faulkner, 869 A.2d at 108–09 (“The facts underlying both
35   cases are inextricably ‘related in time, space, origin, or motivation . . . .’”) (quoting Restatement
36   (Second) of Judgments § 24(2) (1982)); Pomfret Farms Ltd. P’ship, 811 A.2d at 658–59 (“[A]
37   claim has a logical relationship to the original claim if it arises out of the same aggregate of
38   operative facts as the original claim . . . .”) (quoting Stratton v. Steele, 472 A.2d 1237, 1239 (Vt.
39   1984) (first alteration in original)).
40
41           The claims here are based on the same operative facts and Grundstein argued the same legal
42   issues before the Vermont Supreme Court. In his state court challenge to the Character and Fitness
43   Committee’s decision, Grundstein argued, inter alia, that “he should be certified for character and

                                                       3
 1   fitness on the basis of estoppel or laches” and that the committee’s determination was not supported
 2   by the evidence. In re Grundstein, 183 A.3d at 581. He further argued that “Vermont’s character
 3   and fitness standard is unconstitutionally vague; the character and fitness review process violates
 4   the Equal Protection Clause, the Privileges and Immunities Clause, and the Fifth Amendment; and
 5   the review was not conducted by an impartial decision maker.” Id. at n.4. In his federal
 6   complaint, he raised identical issues with estoppel and laches, evidence, due process, and other
 7   constitutional claims. Further, both cases are based on the same character and fitness proceedings.
 8   Therefore, the subject matter and causes of action are the same.
 9
10            Third, the February 2018 decision by the Vermont Supreme Court qualifies as “previous
11   litigation.” Carlson, 970 A.2d at 1272. Although the Vermont Supreme Court proceeding did not
12   result from a traditional lawsuit, the Vermont Supreme Court reviewed the record de novo,
13   considered the merits of Grundstein’s arguments, and published a decision. In re Grundstein, 183
14   A.3d at 581–89. Therefore, the Vermont Supreme Court proceedings were sufficiently
15   adjudicative in nature so as to preclude further litigation. See D.C. Ct. of Appeals v. Feldman, 460
16   U.S. 462, 479 (1983) (concluding that court of appeal’s reviews of bar applicants’ petitions were
17   judicial in nature because they “involved a judicial inquiry in which the court was called upon to
18   investigate, declare, and enforce liabilities as they [stood] on present or past facts and under laws
19   supposed already to exist.”) (internal quotation marks omitted). And the fact that the state and
20   federal proceedings occurred simultaneously does not prevent the Vermont Supreme Court decision
21   from having preclusive effect. R.E. Bean Const. Co. v. Middlebury Assocs., 428 A.2d 306, 309
22   (Vt. 1980) (“A valid and final judgment rendered in one action is conclusive in another action
23   between the parties although the other action was commenced before the rendition of the judgment
24   or before the commencement of the action in which the judgment was rendered.”) (quoting
25   Restatement of Judgments § 43 (1942)). Thus, the Vermont State Court judgment can have
26   preclusive effect. Accordingly, we affirm the district court’s dismissal of Grundstein’s complaint
27   on the basis of res judicata.
28
29          We have considered all of Grundstein’s remaining arguments and find them to be without
30   merit. For the foregoing reasons, the judgment of the district court is AFFIRMED.
31
32                                                 FOR THE COURT:
33                                                 Catherine O’Hagan Wolfe, Clerk of Court




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