               Not for Publication in West’s Federal Reporter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


                                       -5-
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


                                  -6-
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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