Cooper v. US Dept of Veterans ( 2003 )

Not for Publication in West’s Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 02-2357
NATHANIEL COOPER,
Plaintiff, Appellant,
v.
ANTHONY PRINCIPI, SECRETARY,
UNITED STATES DEPARTMENT OF VETERANS AFFAIRS,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Before
Boudin, Chief Judge,
Campbell, Senior Circuit Judge,
and Lipez, Circuit Judge.
Nathaniel Cooper on brief pro se.
Thomas P. Colantuono, United States Attorney, and Robert J.
Rabuck, Assistant U.S. Attorney, on brief for appellee.
July 24, 2003
Per Curiam. Pro se plaintiff-appellant Nathaniel Cooper
("Cooper") appeals from the dismissal of his second complaint
against the United States Department of Veterans Affairs ("VA")
based upon res judicata. We review the dismissal of a complaint on
res judicata grounds de novo. See, e.g., Apparel Art Int'l, Inc.
v. Amertex Enters. Ltd., 48 F.3d 576, 583 (1st Cir. 1995). We are
obligated to construe a pro se complaint liberally, Ayala Serrano
v. Lebron Gonzales, 909 F.2d 8, 15 (1st Cir. 1990), treating all
well-pleaded factual allegations as true and drawing all reasonable
inferences in the plaintiff's favor, Aversa v. United States, 99
F.3d 1200, 1210 (1st Cir. 1996). After carefully reviewing the
parties' briefs and the record, we affirm the dismissal of the
present complaint for the reasons stated below.
Under the federal doctrine of res judicata, "a final judgment
on the merits of an action precludes the parties from relitigating
claims that were raised or could have been raised in that action."
See, e.g., Bay State HMO Mgmt., Inc. v. Tingley Sys., Inc., 181
F.3d 174, 177 (1st Cir. 1999). "For a claim to be precluded, there
must be: (1) a final judgment on the merits in an earlier action;
(2) sufficient identity between the causes of action asserted in
the earlier and later suits; and (3) sufficient identity between
the parties in the two suits." Id. We briefly address the lower
court's ruling regarding each element.
First, the lower court determined that a final judgment on the
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merits had been rendered in the earlier suit. The court had
dismissed the claims in the first suit as either time-barred under
the applicable statutory limitations periods or precluded by the
Civil Service Reform Act ("CSRA"), 5 U.S.C. § 1101 et seq. It is
well-settled that a dismissal on statute-of-limitations grounds is
a judgment "on the merits." See Plaut v. Spendthrift Farm, Inc.,
514 U.S. 211, 228 (1995). Even though the magistrate judge
recommended and the district court approved that Cooper's first
suit be dismissed "without prejudice," we have held that a
dismissal labeled "without prejudice" is, in fact, "with prejudice"
if the statute of limitations has run. Hilton Int'l Co. v. Union
De Trabajadores De La Industria Gastronomica De Puerto Rico, 833
F.2d 10, 11 (1st Cir. 1987). Therefore, the dismissal of the time-
barred claims constituted a final judgment on the merits,
satisfying the first res judicata element.
With respect to the claims held to be precluded by the CSRA,
their dismissal rested on the fact that the federal statute
preempted Cooper's lawsuit and barred him from litigating those
claims in that forum. The lower court, in effect, lacked subject
matter jurisdiction over the CSRA claims. See Berrios v.
Department of the Army, 884 F.2d 28, 31-32 (1st Cir. 1989).
Although a dismissal for lack of jurisdiction is not considered to
be "on the merits," see Fed. R. Civ. P. 41(b), and, thus, does not
effect a merger or bar based on the prior claims, the doctrine of
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collateral estoppel prevented the court from rehearing the issue of
preemption. See Muniz Cortes v. Intermedics, Inc., 229 F.3d 12,
14-15 (1st Cir. 2000) (noting that dismissal for lack of subject
matter jurisdiction "precludes relitigation of the issues
determined in ruling on the jurisdictional question"). Because the
issue of CSRA's preemption could not be relitigated, the CSRA
preempts these same claims in the second suit. Moreover, although
the dismissal of the first suit was labeled "without prejudice," it
is "with prejudice" with respect to the issues that were decided in
the first suit. See, e.g., In re Kauffman Mut. Fund Actions, 479
F.2d 257, 267 (1st Cir. 1973) (holding that dismissal "without
prejudice" still bars relitigation of "very question which was
litigated in the prior action"). Accordingly, we uphold the lower
court's dismissal of Cooper's CSRA claims under the doctrine of
collateral estoppel (or issue preclusion), without determining
whether the merger and bar branch of res judicata (or claim
preclusion) applies to a dismissal based on preemption. See, e.g.,
Four Corners Serv. Station, Inc. v. Mobil Oil Corp., 51 F.3d 306,
314 (1st Cir. 1995) (noting that appellate court is free to affirm
district court judgment on any ground supported by the record).
Next, the lower court determined that all of the claims
asserted by Cooper in the second suit were asserted, or could have
been asserted, in the earlier suit because both causes of action
arose as a result of Cooper's removal from his job. In our
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circuit, for res judicata purposes, a cause of action embraces the
various possible claims derivable from "a set of facts which can be
characterized as a single transaction or series of related
transactions." Apparel Art Int'l, Inc., 48 F.3d at 583. The test
to determine the identity of two causes of action for purposes of
res judicata is whether the essential or operative facts are the
same in both cases. Massachusetts Sch. of Law at Andover, Inc. v.
American Bar Ass'n, 142 F.3d 26, 38 (1st Cir. 1998). In making
this determination, courts consider various factors, such as (1)
whether the facts are related in time, space, origin or motivation,
(2) whether they form a convenient trial unit, and (3) whether
their treatment as a unit conforms to the parties' expectations.
Id. This test does not require identity of legal theory. Porn v.
National Grange Mut. Ins. Co., 93 F.3d 31, 34 (1st Cir. 1996)
(noting that "[t]he mere fact that different legal theories are
presented in each case does not mean that the same transaction is
not behind each").
The lower court correctly determined that both actions arose
from Cooper's 1994 removal from his federal job. A comparison
between the first complaint and the present complaint reveals many
of the same claims. The lower court noted two of them: Both
complaints alleged that the VA's actions resulted in damage to
Cooper's credit rating, and both asserted that the VA disseminated
false medical information which, in turn, adversely affected
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Cooper's employment. Both complaints also alleged that the VA
unjustly recouped severance payments under false pretenses and
without a hearing.
Cooper's new claims are merely additional complaints about the
VA's actions following his removal. Cooper asserts that the VA
denied him vocational retraining and tampered with his files to
delay the processing of his retraining benefits. Cooper also seeks
reimbursement of tuition he paid out-of-pocket because of the
denial of vocational retraining. The lower court determined that
all of these claims appeared to relate to Cooper's job removal, and
were factually similar in time, origin and motivation. This
determination was proper. Cooper's claim to entitlement to VA
vocational retraining benefits, and his allegations of file
tampering, would not have arisen had he not been removed from his
job. Moreover, Cooper's own statements evidence the identity of
his two causes of action. In his first suit, Cooper specifically
alleged that the VA committed various acts against him in reprisal
for his whistleblowing activities. Thus, Cooper took the position
that the VA's adverse actions were directly related to each other
in terms of the VA's motivation and common purpose to retaliate
against him. See, e.g., Havercombe v. Department of Educ., 250
F.3d 1, 6 (1st Cir. 2001) (holding that separate causes of action
alleging various improper acts by employer added up to single claim
of workplace harassment). Although Cooper asserts in his reply
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brief that he was not removed from his job, but, rather, did not
return to his job because of an ankle injury, this assertion is
belied by statements in Cooper's initial brief, where he asserted
that he "was separated from the military under false pretenses"
because he had "made protected whistle-blowing disclosures."
In sum, Cooper's claims in both suits seek redress for the
same wrong: his removal from his job. There is no reason why the
new claims in the present suit could not have been raised in the
earlier action. Cooper was in possession of all the facts on which
his new claims were based before filing his first action. See,
e.g., Massachusetts Sch. of Law, 142 F.3d at 38 (noting that
plaintiff "d[id] not identify any significant facts that were not
within its ken before the [first] action reached its climax" in
upholding res judicata bar to second action). Accordingly, the
lower court was correct in finding that there was sufficient
identity between the causes of action asserted in the two suits to
satisfy the second element of res judicata.
Lastly, the lower court determined that the parties in both
cases were identical. The record demonstrates that Cooper named
the VA as a defendant in both of his lawsuits. Therefore, the
lower court was correct in finding that this last element of res
judicata was satisfied. Accordingly, we affirm the dismissal of
the present suit.
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