Under Seal v. Virginia Board of Medicine

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-1438
UNDER SEAL,
Plaintiff - Appellant,
v.
VIRGINIA BOARD OF MEDICINE,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Liam O’Grady, Senior District Judge. (1:20-cv-01406-LO-JFA)
Submitted: August 21, 2023 Decided: August 31, 2023
Before GREGORY and THACKER, Circuit Judges, and FLOYD, Senior Circuit Judge.
Vacated and remanded by unpublished per curiam.
Under Seal, Appellant Pro Se. James Edward Rutkowski, Assistant Attorney General,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Appellant Under Seal appeals the district court’s orders dismissing this civil case as
barred by res judicata and denying reconsideration. Under federal law, “res judicata applies
when [there is]: ‘(1) a final judgment on the merits in a prior suit; (2) an identity of the
cause of action in both the earlier and the later suit; and (3) an identity of the parties or
their privies in the two suits.’” T.H.E. Ins. Co. v. Davis, 54 F.4th 805, 820 n.7 (4th Cir.
2022) (quoting SAS Inst. Inc. v. World Programming Ltd., 874 F.3d 370, 378 (4th Cir.
2017)). Although res judicata is “an affirmative defense ordinarily lost if not timely
raised,” the Supreme Court has noted that it may be appropriate for the district court to
raise the issue sua sponte when “‘a court is on notice that it has previously decided the
issue presented.’” Arizona v. California, 530 U.S. 392, 410-12 (2000).
The district court determined that its decision in Appellant’s prior federal case was
a final judgment on the merits for purposes of res judicata. But, in the prior case, the district
court dismissed the action pursuant to Younger v. Harris, 401 U.S. 37 (1971); Huffman v.
Pursue, Ltd., 420 U.S. 592 (1975), and we affirmed that decision. See Under Seal v. Va.
Bd. of Med., 829 F. App’x 616 (4th Cir. 2020). As we have explained, “a Younger dismissal
is plainly not a merits-based judgment.” Nivens v. Gilchrist, 444 F.3d 237, 248 n.9 (4th
Cir. 2006). We therefore conclude that the district court erred in ruling that Appellant’s
current civil action was barred by res judicata based on the prior federal civil case.1
1 We express no view on the merits or viability of the current civil action, including
whether Appellant’s claims may be precluded by any rulings in the state proceedings.

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Accordingly, we vacate the district court’s orders and remand to the district court
for further proceedings consistent with this opinion. We grant Appellant’s pending motion
to seal Appellant’s unredacted filings on appeal.2 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.
VACATED AND REMANDED
2 To the extent that Appellant seeks to seal all or any part of the record in the district
court, Appellant’s motion should be filed in the district court. See 4th Cir. R. 25(c)(2).

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