FILED 

 U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 APRIL 3, 2003 

 THOMAS K. KAHN 

 CLERK

*Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by

designation.

 [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 02-13767

________________________

D. C. Docket No. 02-60194-CV-WMH

MANUEL DAVILA,

Plaintiff-Appellant,

versus

DELTA AIR LINES, INC.,

Defendant-Appellee.

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(April 3, 2003)

Before HULL, MARCUS and FARRIS*, Circuit Judges.

MARCUS, Circuit Judge:
2

Manuel Davila appeals the district court’s dismissal pursuant to Fed. R. Civ.

P. 12(b)(6) of his claims sounding in breach of contract and an alleged violation of

the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. On

appeal, Davila argues that the district court erred by holding that his claims are

barred under the doctrine of res judicata. Delta Air Lines, Inc. (“Delta”) defends

the district court’s application of res judicata, and also argues that Davila’s breach

of contract claim is preempted by the Railway Labor Act, 45 U.S.C. § 151 et seq.,

and that both of his claims are untimely.

We review de novo the dismissal of a complaint pursuant to Fed. R. Civ. P.

12(b)(6). Next Century Communications Corp. v. Ellis, 318 F.3d 1023, 1025 (11th

Cir. 2003); Harris v. Ivax Corp., 182 F.3d 799, 802 (11

th Cir. 1999). The

plaintiff’s factual allegations are accepted as true. South Fla. Water Mgm’t Dist.

v. Montalvo, 84 F.3d 402, 406 (11th Cir. 1996). Dismissal is not appropriate

unless it is plain that the plaintiff can prove no set of facts that would support the

claims in the complaint. See id. However, conclusory allegations, unwarranted

factual deductions or legal conclusions masquerading as facts will not prevent

dismissal. See id. at 408 n.10.

Upon thorough review of the record and a careful consideration of the

parties’ briefs and oral argument, we find no reversible error and affirm.
3

Davila, who was a pilot employed by Delta, injured his lower back in

December, 1989 when he accidentally fell over a planter. He sought medical

treatment for his injury, and was prescribed medication that disqualified him for

flight duty. Nonetheless, he asserts that he chose to undergo an FAA physical

examination on January 31, 1990 in an attempt to obtain a first-class medical

certificate, which was necessary to qualify him for a return to flight status. On

May 3, 1990, the FAA approved him for this certificate with the caveat that

“[b]ecause of your history of low back condition, operation of aircraft is

prohibited at any time new symptoms or adverse changes occur or for 12 hours

after use of medication.” 

On July 19, 1990, Davila informed Delta of his flight eligibility. However,

he said that he was still experiencing back problems and taking medication that

prohibited him from piloting a commercial aircraft. Accordingly, on August 21,

1990, Delta approved him for disability payments for 6 months. On February 6,

1991, these benefits were extended for two additional months, i.e., until April 6,

1991. On March 19, 1991, Davila was reexamined by Dr. Jose Berrios, an

Aviation Medical Examiner, who found that he was not qualified for a first-class

medical certificate. Based on this finding, Delta’s payment of disability benefits

continued past April 6, 1991.
4

Davila alleges that on his own initiative he again sought a first-class

medical certificate from Dr. Berrios on January 31, 1992. Davila says that

although he was found to be qualified, Berrios told him that the certificate could

not issue because of his previous denial and that the FAA would need to approve

and issue the certificate. Importantly, Davila asserts that instead of marking the

space on the relevant form corresponding to the disposition: “No Certificate

Issued - deferred for further evaluation,” Berrios’s secretary accidentally checked

the box corresponding to: “Has been issued medical certificate.” Delta, by

contrast, says that the secretary checked this box because Davila actually received

the certificate. On June 30, 1992, the FAA approved Davila’s first-class medical

certification, but repeated its caveat concerning the operation of an aircraft during

“flair-ups” or periods of medication. However, Davila asserts that he never

physically received the certificate. He also says that his back problems (and his

attendant need for medication) persisted. 

Davila adds that in 1993 this precise sequence of events -- from his

voluntary pursuit of a medical certificate to the secretary’s typographical error --

was repeated, and that on October 12, 1993 the FAA advised him that he was

flight-eligible. Davila asserts that he finally received a first-class certificate on
5

November 15, 1993, and that he notified Delta of its issuance on November 25,

1993. 

After receiving this notification, Delta had Davila examined by its own

physician, Dr. Michael Berry, who found him to be qualified for flight status. 

However, Berry further reported that Davila had withheld from Delta the fact that

he had possessed a first-class medical certificate since May 3, 1990. Delta began

an investigation into whether Davila had defrauded it since that time, and deferred

his reinstatement pending the conclusion of its inquiry. Because he had not been

restored to active flight status, Davila filed a grievance with Delta on August 24,

1994 (the “pay status grievance”), but that grievance was denied on October 28,

1994. Despite this denial, however, on May 17, 1995 Delta settled the grievance

and awarded Davila back pay for the period between December 13, 1993 and May

17, 1995. Within one hour following the parties’ agreement to this settlement,

Delta fired Davila, justifying this action on the grounds that he had fraudulently

obtained disability benefits since January 31, 1990. 

Davila filed a grievance pertaining to his termination on May 18, 1995 (the

“discharge grievance”), but this second grievance was denied on June 7, 1995. 

The following day Davila appealed his discharge to Delta’s System Board of
1The System Board is composed in accordance with the Railway Labor Act, 45 U.S.C. § 184.

6

Adjustment (“System Board”),1

 which ultimately found on April 18, 1997 that his

firing was justified, as Delta had “submitted clear and compelling evidence that . .

. Davila intentionally defrauded” the company. After the System Board issued its

adverse ruling, Davila petitioned the district court pursuant to 45 U.S.C. §§ 153(q)

and 184 to vacate its decision (“Davila I”), arguing that the Board had ignored the

settlement agreement. Delta filed a motion to dismiss, which the court granted,

reasoning that there are only limited grounds on which a RLA arbitration award

may be vacated, and that none of those circumstances were present. The district

court then said that Davila had “presented no grounds that would support the

jurisdiction of this Court over this matter.” Davila appealed the order of dismissal

to this Court, and we issued a summary affirmance on the basis of the district

court’s opinion. 

Subsequently, on July 31, 2000, Davila filed an EEOC charge in which he

alleged that his termination violated the ADA. The EEOC dismissed Davila’s

charge on May 7, 2001, stating that it had been unable to find a violation. 

However, it did issue Davila a right to sue letter. Davila then filed this action in

the state Circuit Court for the Seventeenth Judicial Circuit, in and for Broward

County (“Davila II”). He advanced one claim sounding in breach of contract, in
2Moreover, the district court denied Davila’s request for leave to amend his complaint,

reasoning that any such amendment would be futile, as no breach of contract claim would be

cognizable for the reasons stated in its dismissal.

7

which he asserted that his discharge violated the grievance settlement agreement,

and a second claim that Delta had violated the ADA by firing him. Delta promptly

removed the action to the United States District Court for the Southern District of

Florida, and in lieu of an answer, moved that court to dismiss both of Davila’s

claims on res judicata and timeliness grounds. It also argued that Davila’s breach

of contract claim was preempted by the RLA. The district court dismissed both

claims, reasoning that they were precluded under the doctrine of res judicata.2

The doctrine of res judicata, or claim preclusion, “‘will bar a subsequent

action if: (1) the prior decision was rendered by a court of competent jurisdiction;

(2) there was a final judgment on the merits; (3) the parties were identical in both

suits; and (4) the prior and present causes of action are the same.’” Jang v. United

Techs. Corp., 206 F.3d 1147, 1149 (11th Cir. 2000) (quoting Israel Disc. Bank,

Ltd. v. Entin, 951 F.2d 311, 314 (11

th Cir. 1992)). Importantly, this bar pertains

not only to claims that were raised in the prior action, see id., but also to claims

that could have been raised previously. Trustmark Ins. Co. v. ESLU, Inc., 299

F.3d 1265, 1271 (11th Cir. 2002) (“‘Res judicata bars the filing of claims which

were raised or could have been raised in an earlier proceeding’” (quoting Ragsdale
8

v. Rubbermaid, Inc., 193 F.3d 1235, 1238 (11th Cir. 1999))). In determining

whether the prior and present causes of action are the same, we must decide

whether the actions arise “out of the same nucleus of operative fact, or [are] based

upon the same factual predicate.” In re Piper Aircraft Corp., 244 F.3d 1289, 1297

(11th Cir. 2001) (quotation omitted), cert. denied TDY Indus., Inc. v. Kaiser

Aerospace & Elecs. Corp., 534 U.S. 827, 122 S. Ct. 66, 151 L. Ed. 2d 33 (2001).

On appeal, Davila argues that res judicata does not bar either of his claims

because the district court’s dismissal in Davila I was not on the merits, as the court

found that it lacked subject matter jurisdiction over the dispute. In this vein, he

says that the court lacked the power in Davila II to recharacterize its holding in

Davila I as having been “on the merits.” He also argues that his ADA claim is not

precluded because (1) lacking a right to sue letter, he could not have brought this

claim in Davila I; and (2) it entails different elements than the breach of contract

claim at issue in Davila I. 

Of these assertions, only the first -- that the district court’s dismissal in

Davila I was not on the merits -- warrants any extended discussion. Preliminarily,

neither of Davila’s latter two contentions regarding the applicability of claim

preclusion are at all persuasive. In Jang, we explicitly rejected the argument that
9

an ADA claim is not barred by res judicata where the plaintiff previously has

brought a state law action prior to obtaining a right to sue letter. We said:

Appellant asserts that he could not have raised his ADA claim in Jang

I and thus res judicata should not bar his ADA claim in Jang II.

Appellant explains that he attempted to obtain a “right to sue” letter

before filing Jang I but that the Equal Employment Opportunity

Commission (EEOC) and the Department of Labor’s Office of

Federal Contract Compliance Programs (OFCCP) failed to transmit

the letter. At least three other Circuits have rejected similar

arguments and held that plaintiffs may not split causes of action to

bring, for example, state law claims in one suit and then file a second

suit with federal causes of action after receiving a “right to sue” letter.

 . . . We agree with these other Circuits . . . and hold that res judicata

barred Appellant from splitting his causes of action and bringing his

ADA claim after his first suit proceeded to a judgment on the merits.

206 F.3d at 1149 (internal citations omitted).

Moreover, there is no question that Davila’s instant ADA claim shares

precisely the same transactional basis as the claim he advanced before the System

Board, i.e., his termination, and that as such he could have raised it in Davila I. 

Accordingly, the fact that the elements of proof in the context of the ADA claim

differ from those at issue in Davila’s breach of contract claim is not a basis on

which we may hold res judicata to be inapplicable.

There is no question that the United States District Court for the Southern

District of Florida is a court of competent jurisdiction over appeals from the

System Board, that the parties were identical in both suits and that the prior and
10

present causes of action are the same, i.e., both stemmed from Davila’s discharge

and were or could have been brought in Davila I. This leaves only the question of

whether Davila I represented a final judgment on the merits. More specifically,

we must determine whether the district court dismissed Davila’s initial action for

lack of subject matter jurisdiction, which plainly is not an adjudication on the

merits that would give rise to a viable res judicata defense. See Sewell v. Merrill

Lynch, Pierce, Fenner & Smith, Inc., 94 F.3d 1514, 1518 (11th Cir. 1996)

(“‘[O]rdinarily a judgment dismissing an action or otherwise denying relief for

want of jurisdiction . . . does not preclude a subsequent action in a court of

competent jurisdiction on the merits of the cause of action originally involved.’”

(quoting 1B James W. Moore, et al., Moore’s Federal Practice ¶ 0.405[5] (2d ed.

1996))); id. (“If the court in which an action is brought has no jurisdiction of the

subject matter, the suit must be dismissed; ‘[i]n such cases, the dismissal is not a

determination of the claim, but rather a refusal to hear it, and the plaintiff is free to

pursue it in an appropriate forum.’” (quoting 1B James W. Moore, et al., Moore’s

Federal Practice ¶ 0.409[1.-2])); American Nat’l Bank v. FDIC, 710 F.2d 1528,

1535 (11th Cir. 1983) (“The earlier damages action, while arising out of the same

transaction, was dismissed for lack of subject matter jurisdiction. Thus, no final

judgment was entered on the merits of that action and res judicata may not apply
11

to bar claims that were or should have been raised in that action.”). If, however,

the district court adjudicated Davila’s claims on their merits in Davila I, there is no

question that claim preclusion bars both of Davila’s instant claims. 

In Davila I, the district court unquestionably couched its holding in

jurisdictional terms. In particular, after noting the limited circumstances under

which the System Board’s determination could be vacated and finding that none of

those circumstances were present, it concluded that it consequently lacked

jurisdiction over the subject matter of the appeal. Put differently, the court said

that because Davila was not entitled to relief from the Board’s judgment, it did not

have jurisdiction over his claims.

Although the district court thus employed “jurisdictional” language, it is

equally plain as a substantive matter that the court did not actually conclude that it

lacked the power to adjudicate the dispute before it. Indeed, it was only after

reaching the very merits of Davila’s challenge to the System Board’s

determination that the court found subject matter jurisdiction to be lacking. 

Specifically, the district court expressly noted that it could set aside that

determination “[(1)] for failure of the [System Board] to comply with the

requirements of this chapter[; (2)] for failure of the [Board’s] order to conform, or

confine itself, to matters within the scope of the [Board’s] jurisdiction[;] or [(3)]
12

for fraud or corruption by a member of the [Board] making the order.” 45 U.S.C.

§ 153(q). Of these circumstances, Davila argued only that the second was

manifest, asserting specifically that because his first pay status grievance

ultimately was resolved in his favor the System Board was barred by the CBA and

principles of collateral estoppel from resolving his discharge grievance against

him. Accordingly, he claimed, the Board lacked jurisdiction to make its April 18,

1997 finding that his firing was justified.

The district court squarely rejected Davila’s collateral estoppel argument,

saying that:

Apart from other problems with Davila’s argument [e.g., that Davila

himself invoked the Board’s jurisdiction over his second grievance],

the two very different and separate grievances addressed two very

different and separate problems. The pay status grievance claimed

that Delta should have returned Davila to its payroll . . . once Davila

presented a valid medical certificate on December 13, 1993. The

discharge grievance, however, claimed that under the “just cause”

provision of the CBA Delta should not have fired Davila. Not only

did the two grievances address entirely different actions by Delta, but

the remedies sought and received were also different.

Because collateral estoppel applies only to issues actually litigated in a previous

action, see Agripost, Inc. v. Miami-Dade County, 195 F.3d 1225, 1230 n.11 (11th

Cir. 1999), cert. denied, 531 U.S. 815, 121 S. Ct. 51, 148 L. Ed. 2d 20 (2000), the

district court determined that the Board was not precluded from resolving the
13

latter grievance against Davila. The district court similarly found that although the

CBA prevented the Board from disturbing a “previously settled” issue, the pay

status grievance did not “settle” the propriety of his termination. Based on these

conclusions, the court held that the System Board possessed jurisdiction over

Davila’s termination grievance, and that none of the circumstances identified in §

153(q) were present. Consequently, the district court found that it lacked any

basis for disturbing the System Board’s determination.

Simply put, this analysis can only be considered a decision on the merits. 

The court focused not on its ability to adjudicate the case before it, but instead on

the substantive shortcomings in Davila’s arguments. In other words, it is not that

the court found that it lacked the power to hear Davila’s claims; it is simply that

the court found those claims to be unpersuasive. By contrast, if the district court

truly had dismissed the case for lack of subject matter jurisdiction it could not

legitimately have reached the merits of Davila’s contentions, as narrow as those

questions may have been. Indeed, the district court recognized as much in Davila

II, in which it said that “in granting Delta’s 1999 Motion to Dismiss, this Court

stated that it lacked jurisdiction, the Court never discussed the issue and . . . now

find[s] that this was an improper characterization of the dismissal. More

accurately, the Court reviewed the decision of the Board on limited grounds and
14

affirmed . . . .” This explanation plainly is accurate, for the reasons set forth

above. Nor is it an ex post alteration to, or “recharacterization” of, the Davila I

holding; it merely is an accurate summary of the substance of the court’s holding

in that case.

More than one court of appeals has looked past the linguistic label

employed by the district court in determining whether a dismissal transpired on

jurisdictional grounds. See, e.g., Stewart v. U.S. Bancorp, 297 F.3d 953, 957 (9th

Cir. 2002) (analyzing the substantive basis for the district court’s dismissal, not

merely considering that the district court had acted pursuant to Fed. R. Civ. P.

12(b)(6), in determining that a dismissal was a decision on the merits); Criales v.

Am. Airlines, Inc., 105 F.3d 93, 97 (2d Cir. 1997) (“We recognize that the district

court’s dismissal of Criales’s complaint arising from his untimely charge was

styled as a dismissal for failure to state a claim under Rule 12(b)(6) of the Federal

Rules of Civil Procedure, and that dismissals under Rule 12(b)(6) are generally

considered judgments on the merits, unless the court specifies otherwise. 

Nonetheless, we would not permit the choice of labels to distort substance,

especially where the consequence would be so drastic as to deprive a party of the

opportunity to be heard.”) (internal citation omitted). When we undertake such a

substantive inquiry in this case, there can be no reasoned doubt that -- as the
3Because this conclusion disposes of this appeal, we need not address Delta’s arguments

concerning preemption and timeliness.

15

district court itself recognized in Davila II -- the court did not base its dismissal on

jurisdictional grounds. Accordingly, it was a final judgment on the merits, and it

is entitled to preclusive effect. Thus, both of Davila’s instant claims are barred by

res judicata.3

AFFIRMED.