residents in ICF/MR units to receive “active treatment,” as is required by 42 U.S.C. § 1396d(d)(2) and 42 C.F.R. § 483.440. Moreover, neither the Complaint nor the Consent Decree sought to require STS to consider all residents for community placement. Finally, neither the Complaint nor the Consent Decree sought to enjoin STS from issuing DNR orders. Each of the above remedies is sought by plaintiffs in the instant case. Thus, in the instant case there is manifest evidence that the statutory structure of CRI-PA prevented the Justice Department from pursuing all of the causes of action and types of relief which are available to the plaintiffs. For this reason, plaintiffs’ claims are not barred under res judicata. See Burka v. New York City Transit Auth., 32 F.3d 654, 658 (2nd Cir.1994) (<HOLDING>). B. Absence of Privity Literal privity need
holding that res judicata is not applicable to a claim for relief that was unavailable in the earlier action holding that res judicata does not bar those claims that arose after the original pleading is filed in the earlier proceeding holding that res judicata applies in deportation proceedings holding that res judicata did not preclude the subsequent filing of an action which was a permissive claim in a prior action holding that the doctrine of res judicata is applicable to defenses that could have been raised in a prior action