Grundstein v. Vt. Bd. of Bar Examiners

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

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

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