### FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT APRIL 3, 2003 THOMAS K. KAHN CLERK

* Honorable

Jerome Fa rris, 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-Appel lant,

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 appe

als the district cour

t’s dismissal

pursuant to Fed. R.Civ. P. 12(b)(6) of his

claims sounding in

breach of contrac

t and an alleged viola

tion of the Americans with Disabili ties 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 doc

trine 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 b y the Railway Labor Act, 45 U.S.C. § 151 et s eq., and tha t both of his c laims are untimel y. We review de novo the dismissal of a complaint pursuant to Fed. R. Civ. P. 12(b)(6). Next Century Communicati ons Corp. v. Ellis , 318 F.3d 1023, 1025 ( 11 th Cir. 2003); Harris v. Ivax Corp. , 182 F.3d 799, 802 (1 1 th Cir. 1999). The plaintiff’s factual all egations are accepted as true. South Fla. Wate r Mgm’t Dis

t. v. Montalvo , 84 F.3d 402, 406 (11 th Cir. 1996). Dism issal is not appropria

te unless it is plain that t

he plaintiff can pr

ove no set of facts th

at would support the claims in the complaint. See id. However, conclusory allegations, unwarranted factual deductions or

legal conclusions m

asquerading as fac

ts will not prevent dismissal. See id. at 408 n.10. Upon thorough review

of the record and a

careful consider

ation of the parti es’ br iefs a nd ora l argu ment, w e find no rev ersib le err or and affir m.3

Davila, who wa

s a pilot employ

ed by Delta, i

njured his lower b ack in December, 1989 when he accidentally fell over a planter. H e sought medical treatment for

his injury, a

nd was prescribed m

edication that disqual

ified 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 nece ssary 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 air

craft is prohibited at any time new symptom s 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 fr

om piloting a com

mercial air

craft. Accor

dingly, on August 21, 1990, Delta approve

d him for disabil

ity paym ents for 6 months.

On February 6, 1991, these benefits

were extended fo

r two additional m

onths, i.e., unti

l April 6, 1991. On March 19, 1991, Davila was reexamined by Dr. Jose Berrios, an Aviation Medical E

xaminer, wh

o found that he was not

qualified for a fi

rst-class medical cert

ificate. Based on this finding, Delt a’s paym ent of disability

benefits continued past April

6, 1991.4

Davila alleges tha

t on his own initiative he again sought a firs t-class medical certificate from Dr. Be rrios on January 31, 1992. Davila says that although he was found t

o be qualified, Ber

rios told him that

the certificate

could not issue because of h

is previous denial and that the FAA woul d need to approve and issue the certif

icate. Impor

tantly, Davil

a asserts that inste

ad of marking the space on the releva

nt form corre sponding to the disposition: “No Certifi cate Issued - deferred for further evaluation,” Berrios’s secretary accidentally checked the box corresponding t

o: “Has been i ssued medical certificate.” Delta, by contrast, says that the secretary checked this box because Davila actually rece ived the certificate. On June 30, 1992, the FAA approved Davila’s first-class medica l certification, b

ut repeated its cav

eat concerning the o

peration of an airc

raft during “flair-ups” or periods of medication. However, Da vila asserts that he never physically r

eceived the certi

ficate. He also says that his bac k problems (and h

is attendant need for medicat ion) persisted. Davila adds that in 19 93 this precise seque nce of events -- fr

om 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 h e finally rec eived a first-cla ss certificate on5

November 15,

1993, and that he notif

ied Delta of its iss

uance on Novem

ber 25, 1993. After receiving this n otification, Delta ha d Davila examined by its own physician, Dr. Michael Berry, who fou nd him to be qualified fo r 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, Dav

ila filed a grievan

ce with Delta on A

ugust 24, 1994 (the “pay

status grievance”) , but that grievance was denied on Octob er 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 on

e hour following the p arties’ agree ment to this settl

ement, Delta fired Da

vila, justify

ing this action on the gr

ounds that he had frau

dulently obtained disabil ity benefits since Janu ary 31, 1990. Davila filed a gri

evance pertaining t

o his terminatio

n on May 18, 1995 (

the “discharge grievance”), bu t this second griev ance was denied on Jun e 7, 1995. The following day

Davila appealed hi s discharge to Delt a’s System

Board of1 The System Boar d is composed in acc

ordance with the

Railway L

abor Act, 45 U.S.C.

§ 184. 6 Adjustment (“System

Board”), 1 which ultimate ly found on April 18, 1997 that his firing was justified, as Delta had “submitted clear and co mpelling evidence that

. . . Davila intentiona

lly defrauded”

the company . After the Sy stem Board issue

d its adverse ruling, D avila petitioned the d istrict court pursua

nt to 45 U.S.C. § § 153(q) and 184 to vacate its decision (“ Davila I ”), arguing that the Board had ignored the settlement agr

eement. De

lta filed a mot

ion to dismiss, w

hich the court grante

d, 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 “pre sented no grounds that w ould support the jurisdiction of this Court over this matter.” Davila appealed the order of dismissal to this Court, and we issued a summary affirm ance on the basis of the district court’s opinion. Subsequently, on

July 31, 2000, D avila filed an EE OC charge in whic

h he alleged th at his termin ation vio lated the AD A. The EEOC dismis sed Davila ’s charge on May 7, 2001, stat ing that it had been unable to find a vio lation. However, it did i ssue Davila a right to sue letter. Da

vila then filed this a

ction in the state Circuit Court for the Seventeenth Judicial Circuit, in and for Broward County (“ Davila II ”). He advance d one claim soundi

ng in breach of contr

act, in2 Moreover, the district court de nied Davila ’s request for le ave to amend his co

mplaint, reasoningthat any such amendment w ould be futile, as no breach of contract claim would be cognizable for the reasons stated in its dismissal

. 7 which he asserted t

hat his discharge viol

ated the grievance

settlement agr

eement, and a second claim

that Delta had viola

ted the ADA by

firing him. D elta promptly removed the ac

tion to the United Sta

tes District Court

for the Southern District of Florida, an d in lieu o f an answer, mov ed that cou rt to dismis s both of Da vila’s claims on res judicata and timeliness grounds. It also argued that Davila’s breach of contract claim

was preempte

d by the RLA.The district court dismissed both claims, reasoning that they were precluded under the doctrine of res judicata. 2 The doctrine of re s judicata, or c laim preclusio

n, “‘will bar a subsequent action if: (1) the p

rior decision was r

endered by a cou

rt of competen

t jurisdiction; (2) there was a f

inal judgment o

n the merits; (

3) the parties wer

e 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 ( 11 th Cir. 2000) (quoting Israel Disc. B ank, Ltd. v. Entin , 951 F.2d 311, 314 (1 1 th Cir. 1992)). Im portantly, this bar pertains not only to claims that were rai sed in the prior acti on, see id. , but a lso t o clai ms that could have bee n raised previousl y. Trustmark Ins. Co. v. ESLU, Inc. , 299 F.3d 1265, 1271 (11 th Cir. 2002) (“‘Res judicata bars the filing of claims w hich were raised or could have been raise d in an earlier proceeding’” (quoting Ragsdale8

v. Rubbermaid, Inc. , 193 F.3d 1235, 1238 ( 11 th Cir. 1999))). I n determining whether the prior

and present causes o f action are the sa me, we m ust decide whether the actions arise “out of the same nucleus of operative fact, or [are] based upon the same factual predicate.” In re Piper Airc raft Corp. , 244 F.3d 1289, 1297 (11 th Cir. 2001) (quotati on omitted), cert. denied TDY Indus., Inc. v. Kaiser Aerospace & Ele

cs. Corp. , 534 U.S. 827, 122 S. Ct. 66, 151 L. Ed. 2d 33 (2001). On app eal, Da vila a rgues that r es jud icata does n ot bar eithe r of hi s clai ms because the distric

t court’s dism

issal in Davila I was not on the merits, as the court found that it lacked su

bject matte

r jurisdiction over

the dispute. In this v

ein, he says that the cour

t lacked the power in Davila II to recharacteri ze its holding in Davila I as having been “ on the merits. ” He also argues th at his ADA claim

is not precluded because (1) lacking a right t o sue letter, he co

uld 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 assertio

ns, only the fir

st -- that the distri

ct court’s dism

issal in Davila I was not on the me rits -- warrant s any ext ended d iscuss ion. Pre liminar ily, neither of Davila ’s latter two contentions regarding t he applicability

of claim preclusion are at a

ll persuasive. In Jang , we explicitly rejected the argument that9

an ADA claim is not barred by res judicata wher e the plaintiff previously has brought a state law action prior to obtain ing a right to sue lette

r. We said: Appellant asserts t

hat he could not have r

aised his ADA cla

im in Jang I and thus res judica

ta should not bar his AD

A claim in Jang II

. Appellant explains that he attempted to obtain a “right to sue” letter before filing Jang I but that the Equal E mploym ent Opportunity Commission (

EEOC) and the D epartment of L abor’s Office

of Federal Contrac

t Compliance P

rograms (OF CCP) failed to tr ansmit the letter. At least three other Circuits have rejected similar arguments and he

ld that plaintiffs m

ay not split cause s of action to bring, for exam

ple, state law c

laims in one suit a

nd then file a second suit with federal causes of action after receiving a “right to sue” letter. . . . We agr

ee with these other

Circuits . . . a

nd hold that res judicata barred Appellant f

rom splitting his causes of action and br inging his ADA claim after his first sui t proceeded to a j udgment on the m erits. 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 Sy stem Board, i.e.,

his termination

, and that as such he could have raised it i n Davila I

. Accordingly,

the fact that the e

lements of proof

in the context of the A

DA claim differ from

those at issue in Dav

ila’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 Flori

da is a court of com

petent jurisdictio

n over appeals from

the System Boa

rd, that the partie s were identical i n both suits and that the p rior and10

present causes of a

ction are the sam

e, i.e., both st

emmed fr om Davila’ s discharge and were or could ha

ve been brought in Davila I . This leaves only the question of whether Davila I represe nted a f inal ju dgment o n the meri ts. More specif ically, we must deter

mine whether

the district court di smissed Davila ’s initial action f or lack of subject m

atter jurisdicti

on, which plainly

is not an adjudicati

on on the merits that would give ri se to a viable res judic ata defense. See Sewell v. Merr ill Lynch, Pierce, Fenner & Smith, Inc. , 94 F.3d 1514, 1518 ( 11 th Cir. 1996) (“‘[O] rdinarily a j udgment dism issing an action or othe

rwise denying r

elief for want of jurisdict

ion . . . does not pr

eclude a subsequent a

ction in a court of competent ju risdicti on on the meri ts of the ca use of acti on origin ally involv ed.’” (quoting 1B Jame s W. Moore, et al., Moore’s Federal Practice ¶ 0.405[5] (2d e d. 1996))); id. (“If the cour

t in which an action i s brought has no jurisd iction of the subject matte

r, the suit must

be dismissed; ‘ [i]n such cases, the dismissal is n

ot a determination o f the claim, but rather a refu

sal to hear it, and t

he plaintiff is fre

e to pursue it in an appro priate foru m.’” (quoting 1B James W. Moor e, et al., Moo re’s Federal Practice ¶ 0.409[1.-2] )); American Nat’l Bank v. FDIC , 710 F.2d 1528, 1535 (11 th Cir. 1 983) (“The e arlie r damag es act ion, w hile a risin g out of the same transaction, was dismissed for lack of subject matter jurisdiction. Thus, no final judgment was

entered on the m

erits of that action

and res judicata

may not appl

y11

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

djudicated Davila ’s claims on t heir merits in Davila I , there is no question that cla im preclusion bars both of Davila’s instant clai ms. In Davila I , the district cour t unquestionably co

uched its holding in jurisdictional terms. In particular, after noting the limited circum stances under which the Syste

m Board’s de

termination cou

ld be vacated and fin

ding that none of those circumstances were present, it concluded that it consequently lacked jurisdiction over t

he subject ma

tter of the appeal.Put differently , the court said that because Davil

a was not entitled to

relief from

the Board’s jud

gment, it did not have jurisdiction ov

er his claims. Although the district

court thus employ

ed “jurisdict

ional” language, it

is equally plain as a substantive ma tter that the court d

id not actually conclude that it lacked the power to adjudicate the dispute before it. Indeed, it was only after reaching t he very merits o f Davila’s ch allenge 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 fai lure of the [Sy

stem Board] to comply w ith the requirements of this chapter[; ( 2)] for failure

of the [Board’s ] order to confor m, 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 [Boar d] 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 f

avor the System

Board was barre

d by the CBA and principles of collat

eral estoppel from

resolving his dischar

ge grievance again

st him. Accord

ingly, he claim

ed, the Board lac

ked jurisdiction to m

ake its April 18, 1997 finding that his fir

ing was justified. The district court

squarely rej ected Davila’s collateral estoppe

l argument, saying that: Apart from ot

her problems w

ith Davila’s ar

gument [e.g. , that Davila himself inv oked the Bo ard’s jurisd iction ov er his seco nd grievan ce], the two very different and separate grievances addressed two very different and separate problems. The pay status grievance claim ed that Delta should hav

e returned Davila

to its payroll . . . once Davila presented a valid m

edical certifica

te on Decembe

r 13, 1993. The discharge grievance, however, claimed that under the “just cause” provision of the CBA

Delta should not have

fired Davila. N

ot only did the two grievances address entirel y different a

ctions by Delta

, but the remedies sought and received w ere also differe

nt. Because collater

al estoppel applies onl

y to issues actua

lly litigated in a

previous action, see Agripost, Inc. v. Miami-Dade

County , 195 F.3d 1225, 1230 n. 11 (11 th Cir. 1999), cert. denied , 531 U.S. 815, 121 S. Ct. 51, 148 L . Ed. 2d 20 (2000), the district court dete

rmined that the

Board was not prec

luded from resolving the13

latter grievance

against Davila. T

he district court sim

ilarly found tha

t 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 term

ination grievance,

and that none of the c

ircumstances identified in § 153(q) were prese

nt. Consequently

, the district cour

t found that it lacked any basis for disturbing th

e System B oard’s determ ination. Simply put, this analysis can on ly be considered a decisi on on the merits. The court focused n

ot on its ability to a

djudicate the cas e before it, but ins tead 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 dism

issed the case for l

ack of subject m

atter jurisdicti

on it could not legitimately

have reached the m

erits of Davila’ s contentions, as nar row as those questions may

have been. Indeed

, the district cour

t recognized as m

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

d jurisdiction, the

Court never discusse

d the issue and . . .now find[s] that this was an improper characterization of the dismissal. More accurately,

the Court reviewe

d the decision of the B oard on limited gr ounds and14

affirmed . . . .” This expl anation plainly is

accurate, for the reasons set for th above. Nor is it an ex post alteration to, or “recharacterization” of, the Davila I holding; it merely is an accurate summar y of the substance of the court’s hold ing in that case. More than one court of appeals has looked past the linguistic label employed by

the district court in

determining w

hether a dismis sal transpired on jurisdictional gro unds. See, e.g. , Stewart v. U.S. Bancorp , 297 F.3d 953, 957 (9 th Cir. 2002) (analy

zing the substantive ba

sis for the district court’s dismi ssal, not merely considering that the district court had acted pursuant to Fed. R. Civ. P. 12(b)(6), in deter

mining that a dism

issal was a decisio

n 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 Feder al Rules of Civil Proc edure, and that dism issals under Rule 12(

b)(6) are genera

lly considered judgments o n the merits, unless the co urt specifies otherwi se. Nonetheless, we would not permit the choice of labels to distort substance, especially wh

ere the consequenc e would be so drastic as to deprive a part

y of the opportunity to be he

ard.”) (interna

l citation omitte

d). When we und

ertake such a substantive inquiry

in this case, there

can be no reasoned do

ubt that -- as the3 Because this conclusion disp

oses of this appea

l, we need not a

ddr ess Delta’s arg

uments concerning pr

eemption and timeli

ness. 15 district court itsel

f recognized in Davila II -- the court did not ba se its dismissal o

n jurisdictional grou

nds. Accordingly

, it was a final j udgment on the m erits, and it is entitled to preclu

sive effect. T

hus, both of Davila’ s instant claims are barred by res judicata. 3 AFFIRMED.