19-3103
Pappas v. Lorintz


                           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 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 15th day of October, two thousand twenty.

       PRESENT:
                   JOHN M. WALKER, JR.,
                   PIERRE N. LEVAL,
                   JOSEPH F. BIANCO,
                         Circuit Judges.
       _____________________________________

       Anthony Pappas, for Congress, a political
       organization created under Title 52 of the Federal
       Code and individually,

                             Plaintiff-Appellant,

                      v.                                               19-3103

       Joseph Lorintz, individually and as Supreme Court
       Judge of the State of New York, Henry Kruman,
       Maria Pappas, TD Bank, N.A., State of New York,

                             Defendants-Appellees.

       _____________________________________

       FOR PLAINTIFF-APPELLANT:                                        ANTHONY PAPPAS, pro se,
                                                                       Astoria, NY.

       FOR DEFENDANTS-APPELLEES LORINTZ
       and STATE OF NEW YORK:                                          CAROLINE A. OLSEN,
                                                                    Assistant Solicitor General
                                                                    (Barbara D. Underwood,
                                                                    Solicitor General; Anisha S.
                                                                    Dasgupta, Deputy Solicitor
                                                                    General; on the brief), for
                                                                    Letitia James, Attorney
                                                                    General of the State of New
                                                                    York, New York, NY.

FOR DEFENDANT-APPELLEE TD BANK, N.A.:                               Jeffrey J. Chapman (Aaron F.
                                                                    Jaroff, on the brief), McGuire
                                                                    Woods LLP, New York, NY.

FOR DEFENDANTS-APPELLEES KRUMAN
and MARIA PAPPAS:                                                   Henry E. Kruman, Kruman &
                                                                    Kruman P.C., Malverne NY.

       Appeal from a judgment of the United States District Court for the Eastern District of

New York (Seybert, J.; Tomlinson, M.J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Plaintiff Anthony Pappas, proceeding pro se, along with his political campaign

organization Anthony Pappas for Congress (together, “Pappas”), appeal the district court’s August

26, 2019 order adopting the magistrate judge’s August 2, 2019 report and recommendation

(“R&R”) in its entirety and dismissing his complaint under 42 U.S.C. § 1983 against his ex-wife

Maria Pappas, her divorce attorney Henry Kruman, the State of New York, New York State

Supreme Court Justice Joseph Lorintz, and TD Bank, N.A. (together, “defendants”). On July 24,

2018, Pappas filed the instant action, claiming that both a “gag order” and a financial restraint

placed on his bank account pursuant to a state court divorce proceeding violated the First

Amendment, the Fourteenth Amendment’s Due Process and Equal Protection Clauses, and federal

election law.   He sought damages, a declaration that the state court orders were unconstitutional,


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and an injunction against their enforcement.

          About five years earlier, in August 2013, Pappas filed suit in the district court similarly

claiming the same “gag order” violated his First Amendment, due process, and equal protection

rights.    The district court dismissed his claims for lack of subject matter jurisdiction under the

“domestic relations exception” and, alternatively, because sovereign and judicial immunity barred

his claims against the State defendants and because Kruman and Maria Pappas were not state

actors.    See Pappas v. Zimmerman (“Pappas I”), No. 13-cv-4883, 

, at *3-6

(E.D.N.Y. Aug. 6, 2014). In the instant case, the district court concluded, inter alia, that Pappas

I collaterally estopped Pappas from asserting the same constitutional claims and, in any event, his

constitutional claims were similarly without merit.       Moreover, it concluded that there was no

private right of action for Pappas to allege a violation of federal election law in federal court.   The

district court also ordered Pappas to show cause why a limited filing injunction should not be

issued against him. We assume the parties’ familiarity with the underlying facts, the procedural

history of the case, and the issues on appeal.

          This Court reviews de novo a district court’s dismissal under Federal Rule of Civil

Procedure 12(b)(1) and 12(b)(6).      Smith v. Hogan, 

, 253 (2d Cir. 2015).       “We also

review a district court’s application of the doctrine of collateral estoppel de novo, accepting all

factual findings of the district court unless clearly erroneous.”     Trikona Advisers Ltd. v. Chugh,

, 29 (2d Cir. 2017) (quotation marks omitted). “We review a district court’s decision

to impose sanctions under its inherent powers for abuse of discretion.” Wilson v. Citigroup, N.A.,

, 723 (2d Cir. 2012).




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        I.      Constitutional Claims

        The district court was correct in determining that collateral estoppel applied.     “Under

federal law, collateral estoppel applies when (1) the identical issue was raised in a previous

proceeding; (2) the issue was actually litigated and decided in the previous proceeding; (3) the

party had a full and fair opportunity to litigate the issue; and (4) the resolution of the issue was

necessary to support a valid and final judgment on the merits.”    Purdy v. Zeldes, 

,

258 (2d Cir. 2003) (quotation marks and footnote omitted).           Collateral estoppel “may be

inappropriate,” however, where “controlling facts or legal principles have changed significantly

since the initial decision.”   Wyly v. Weiss, 

, 143-44 (2d Cir. 2012) (quotation marks

omitted); see also Montana v. United States, 

, 155 (1979).

        In Pappas I, as relevant here, Pappas claimed (1) that the gag order violated his First

Amendment rights by imposing a “prior restraint” on his speech; (2) that he was deprived of his

due process rights because he was denied a fair divorce proceeding; and (3) that he was denied

equal protection because the New York “court system favors female litigants over male litigants.”

Pappas I, 

, at *2. In the present case, Pappas has repeated these claims almost

verbatim. Furthermore, these claims were actually and fully litigated in Pappas I, and were either

subject to a valid and final judgment on the merits or to a conclusive adjudication that they were

not within the jurisdiction of the federal courts. As noted above, the district court in Pappas I

dismissed these claims for lack of subject matter jurisdiction under the “domestic relations

exception” and, alternatively, because sovereign and judicial immunity barred his claims against

the State defendants and because Kruman and Maria Pappas were not, and did not conspire with,

state actors. See Pappas I, 

, at *3-6. Although the parties are not identical,

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mutuality of parties is not required for application of collateral estoppel where, as here, the same

party (Pappas) raises identical claims.   See ACLI Gov’t Sec., Inc. v. Rhoades, 

, 533

(2d Cir. 1992).

        Legal principles, however, have changed since Pappas I. Following the district court’s

adoption of the R&R below, this Court concluded in Deem v. DiMella-Deem that “the domestic

relations exception clearly does not apply” in cases “before this Court on federal question

jurisdiction, not diversity.”   

, 621 (2d Cir. 2019) (quotation marks omitted), cert.

denied, 

(2020).    Thus, because the district court’s subject matter jurisdiction was

predicated on a federal question, not diversity, the court’s dismissal of Pappas’s constitutional

claims, to the extent based on the domestic relations exception, no longer comports with the law

of this circuit.    However, we also stated in Deem that, even though the domestic relations

exception applied only in diversity cases, “its goal of leaving family disputes to the courts best

suited to deal with them was equally strong, if not stronger,” in some non-diversity contexts.

Allen v. Allen, 

, 262 n.3 (7th Cir. 1995)). We therefore

concluded that, even where the domestic relations exception does not apply, a court might

nevertheless exercise “domestic relations abstention” where a litigant’s claims are “on the verge

of being matrimonial in nature” and where “there is no obstacle to their full and fair determination

in state courts.”

(quotation marks omitted).

        We need not determine here whether the district court would have been correct to decline

jurisdiction under domestic relations abstention because, even assuming that the district court erred

by declining to exercise jurisdiction over the constitutional claims, the district court was correct to

collaterally estop those claims on separate grounds.     In Pappas I, the district court stated that if

                                                  5
the domestic relations exception did not apply, the judicial defendants were nevertheless protected

under principles of sovereign immunity and judicial immunity, and non-state actors like Kruman

and Maria Pappas could not be sued pursuant to § 1983. Pappas I, 

, at *4-5.

In the instant action, the district court was therefore correct to dismiss Pappas’s constitutional

claims on the ground that they were previously fully and fairly litigated. In Pappas I, the district

court dismissed the claims at issue on two alternative grounds: first, on the basis that a federal

court lacked jurisdiction to hear them by reason of the domestic relations exception and,

alternatively, because certain claims could not be adjudicated in federal court under the Eleventh

Amendment, while other claims were without merit. Because the law with respect to the federal

courts’ ability to hear claims involving domestic relations has changed, the district court’s

alternative holdings have become the pertinent ones, and those holdings have preclusive effect

here.   Accordingly, those claims cannot now be relitigated.

        Furthermore, even if this were not the case, we would find that the district court’s dismissal

of Pappas’s constitutional claims was correct. Specifically, because Justice Lorintz operated in

his judicial capacity at all times applicable to this case, he has absolute immunity from lawsuits

for damages for his judicial actions. See Bliven v. Hunt, 

, 209 (2d Cir. 2009); see

also Mireles v. Waco, 

, 9-10 (1991). Although Pappas also sought declaratory and

injunctive relief against Justice Lorintz, the Eleventh Amendment bars actions for such relief

against state officials that in effect seek to remedy “a past violation of federal law, even though

styled as something else,” as opposed to a “continuing violation.”    Vega v. Semple, 

,

282 (2d Cir. 2020) (quoting Papasan v. Allain, 

, 278 (1986)).          Here, rather than

alleging some prospective harm, Pappas’s claim is focused purely on the alleged harm done to his

                                                  6
2018 Congressional campaign by the state court orders, effectively making it a suit to remedy a

past violation as opposed to an ongoing one.         Though the State was not a party to the 2013

lawsuit, it nevertheless possesses Eleventh Amendment immunity on the same grounds.           Mary

Jo C. v. New York State and Loc. Ret. Sys., 

, 151-52 (2d Cir. 2013).     Finally, Maria

Pappas, her lawyer Kruman, and TD Bank, N.A., are not state actors, nor were they “acting under

color of state law,” and therefore are not subject to a § 1983 claim. McGugan v. Aldana-Bernier,

, 229 (2d Cir. 2014). In short, the district court was correct to dismiss Pappas’s

constitutional claims.

       II.     Federal Election Law Claim

       Pappas also purports that defendants violated federal election law, an issue that he did not

raise in Pappas I.   Collateral estoppel bars parties only from “relitigating in a subsequent action

an issue of fact or law that was fully and fairly litigated in a prior proceeding.”         Marvel

Characters, Inc. v. Simon, 

, 288 (2d Cir. 2002).     While Pappas’s election law claim

is tangentially related to issues revolving around Pappas’s divorce that were already decided, how

those issues pertain to the federal election law context has not been fully and fairly litigated.

Therefore, the federal election law issues are not precluded.

       Though not estopped by issue preclusion, the federal election law claim is meritless.

Citing 52 U.S.C. § 30114(b), Pappas argues that the provision’s admonition that contributions or

donations to federal election candidates “shall not be converted by any person to personal use”

applies to the restraint on his bank account.   This statute does not, however, provide a private

right of action.   Rather, individuals who allege violations of the act “may file a complaint with

the [Federal Election] Commission,” which then acts on such complaints.                 52 U.S.C.

                                                 7
§ 30109(a)(1).    Absent any language providing for a private right of action, there is nothing to

suggest Pappas may proceed with one here. See Gonzaga Univ. v. Doe, 

, 280 (2002)

(“[U]nless Congress ‘speak[s] with a clear voice,’ and manifests an ‘unambiguous’ intent to confer

individual rights, federal funding provisions provide no basis for private enforcement by § 1983.”

(second alteration in original) (quoting Pennhurst State Sch. & Hosp. v. Halderman, 

,

17, 28 & n.21 (1981))).

        III.     Filing Injunction

        Finally, Pappas argues that a filing injunction imposed by the district court was “ludicrous”

and “wholly unsupported on this record.”       Appellant’s Br. at 25.     The R&R recommended that

the district court direct Pappas to show cause why he should not be barred from filing future

complaints without leave of the court but left questions of notice and timing to the district court.

The district court thereafter adopted the R&R in its entirety, and ordered that “in the future,

Plaintiff is directed to SHOW CAUSE, in writing, as to why he should not be barred from filing

complaints without leave of court.” App’x at 10a.            Pappas has not responded to this direction,

nor has there been any other activity regarding it in the district court.

        We do not interpret the district court’s show cause order as, in fact, imposing a filing

injunction. Although the language of the district court’s order did not set a specific date by which

to respond, it is evident from the district court’s adoption of the R&R in its entirety that the district

court sought to provide Pappas an opportunity to be heard prior to imposing a filing injunction.

Accordingly, because the district court did not impose such an injunction, the issue is not ripe for

our review.    See United States v. Balon, 

, 46 (2d Cir. 2004).

                                              *    *     *

                                                   8
         We have considered all of Pappas’s remaining arguments and find them to be without

merit.   Accordingly, we AFFIRM the judgment of the district court.


                                           FOR THE COURT:
                                           Catherine O’Hagan Wolfe,
                                           Clerk of Court




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