     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
 4       New York, on the 19th 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.
11
12       - - - - - - - - - - - - - - - - - - - -X
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
27      - - - - - - - - - - - - - - - - - - - -X


                                                 1
 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

                                  2
 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

                                  3
 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
23




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