                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT                    FILED
                       ________________________         U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                             November 30, 2006
                             No. 06-12522                  THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                    D. C. Docket No. 05-21369-CV-JAL

EUGENE MORRIS,
a.k.a. “Mercury,”

                                                           Plaintiff-Appellant,

                                  versus

BERT BELL/PETE ROZELLE NFL PLAYER RETIREMENT PLAN,
NFL PLAYER SUPPLEMENTAL DISABILITY PLAN,


                                                        Defendants-Appellees.


                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________

                           (November 30, 2006)

Before DUBINA, CARNES and BARKETT, Circuit Judges.

PER CURIAM:
      Eugene “Mercury” Morris, proceeding pro se, appeals the district court’s

dismissal of his complaint for employment benefits on the merits and pursuant to

the doctrine of res judicata. Morris sued the Defendants, the Bert Bell/Pete Rozelle

NFL Player Retirement Plan (“the Plan”) and the NFL Player Supplemental

Disability Plan (“the Supplemental Plan”), pursuant to the Employee Retirement

Income Security Act of 1974 (“ERISA”), alleging that he is a Vested NFL Player

Beneficiary pursuant to the Plan and Supplemental Plan. He sought retirement

pension benefits pursuant to the Plan, and the Retirement Board of the Plan denied

his claim for benefits and his subsequent appeal because Morris had settled and

released his claims to such benefits in a 1991 agreement between Morris and the

Plan. The Board also found that Morris had previously litigated the question of his

entitlement to the sought benefits in a prior suit, Morris v. Bert Bell NFL Player

Retirement Plan, Case No. 96-21959-CIV-Moore (“the 1996 action”). Morris filed

suit in the district court, and the court granted the Defendants’ Motion to Dismiss.

Morris now appeals.

      Res judicata, the legal determination of which we review de novo, bars

relitigation of matters decided in a prior proceeding when four requirements are

met: (1) there must be a final judgment on the merits; (2) the decision must be

rendered by a court of competent jurisdiction; (3) the parties, or those in privity



                                           2
with them, must be identical in both suits; and (4) the same cause of action must be

involved in both cases. Jang v. United Technologies Corp., 206 F.3d 1147, 1149

(11th Cir. 2000); Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235, 1238 (11th Cir.

1999).

         In this case, it is undisputed that the first three requirements are met, thus we

turn to the fourth—whether the same cause of action in this case was raised in the

1996 action.1 The principal test for determining whether the causes of action are

the same is whether, in comparing the substance of the actions, the primary right

and duty are the same in each case. Id. at 1239. In general, if a case arises out of

the same nucleus of operative fact, or is based upon the same factual predicate as a

former action, the two cases are really the same claim or cause of action for

purposes of res judicata. Id.

         Morris argues on appeal that res judicata does not apply because the

arguments in his 1996 complaint and those in the instant complaint are factually

and legally different. Morris argues that his 1996 complaint sought a kind of

employee benefit that the district court ultimately determined was not available

under the former Bert Bell NFL Player Retirement Plan; he suggests that his

instant claim is for retirement benefits that the district court found were excepted


         1
        Morris agreed in the district court that the first three elements of res judicata were
present and he does not challenge the district court’s findings on those elements on appeal.

                                                 3
from Morris’s 1991 settlement with the Plan. Second, Morris argues that this

action, unlike his first action, was filed pursuant to ERISA. Third, Morris argues

that this case is different because he is now past the retirement age of 55 years old.

Finally, Morris contends that res judicata principles do not apply when the prior

action was for declaratory relief.

      We conclude that the district court did not err in determining that res

judicata barred Morris’s instant complaint. Both cases involve Morris’s claim that

he should receive higher monthly retirement benefits pursuant to Article 5.4 of the

Retirement Plan. The type of benefits sought in this case were not excepted from

Morris’s 1991 settlement. Furthermore, regardless of the fact that Morris now cites

to ERISA and irrespective of Morris’s present age, this suit is based on the same

nucleus of operative fact as the 1996 action. The primary right and duty are the

same in each case, as although Morris alleges ERISA violations, he only seeks

relief under the Retirement Plan. Under our precedent, res judicata applies. See

Ragsdale, 193 F.3d at 1238-39.

      Finally, Morris’s argument that res judicata does not bar the instant

complaint because his first action was for declaratory relief is meritless. While the

preclusive effect of a prior declaratory proceeding can sometimes present a special

problem of issue preclusion, see, e.g., Empire Fire & Marine Ins. Co. v. J.



                                           4
Transport, Inc., 880 F.2d 1291 (11th Cir. 1989), this special problem exists only

when the parties did not actually litigate an issue in a prior declaratory action, id. at

1296-97. The parties in this case fully litigated all issues relating to disability

benefits in Morris’s first action. Accordingly, the suit is barred by the doctrine of

res judicata.

       AFFIRMED.




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