           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        December 23, 2008

                                     No. 08-40516                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


ARIC W HALL

                                                  Plaintiff - Appellant
v.

RUSSELL HODGKINS; GEORGE VOGT; ROGER W BURG; MICHAEL L
DOMINGUEZ; FRANCIS L HENDRICKS; M SCOTT MAYES; JOHN F
REGNI; HENRY C MORROW; T MICHAEL MOSELEY; MICHAEL W
WYNNE; UNITED STATES OF AMERICA; JOHN D HOPPER, JR,
Lieutenant General, USAF (Retired); NICHOLAS B KEHOE, Lieutenant
General, USAF (Retired); CHARLES SEAROCK, Lieutenant General, USAF
(Retired)

                                                  Defendants - Appellees



                   Appeal from the United States District Court
                     for the Eastern District of Texas, Tyler
                             USDC No. 6:07-CV-246


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Aric Hall appeals the district court’s dismissing his Bivens claims against
the defendants as barred by res judicata. Specifically, he attempts to distinguish


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                  No. 08-40516

the cause of action in this claim from those in his two prior claims against
defendants or their privies. In the memorable, if brief, words of Michigan Judge
J. H. Gillis: “He didn’t. We couldn’t.” For that and the following reasons, we
affirm the judgment of the district court.
           I. FACTUAL AND PROCEDURAL BACKGROUND
      Aric Hall was a member of the Civil Air Patrol (“CAP”), a nonprofit and
federally chartered corporation. In prior complaints, he has alleged that the
current defendants or their privies terminated his CAP membership because “he
contacted government.”      Now, he complains, pro se, that defendants have
committed constitutional torts under Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971), by denying him new
membership to CAP because he “contact[ed] [his] own government.” Because
Hall filed two previous complaints against the defendants or their privies, the
district court granted the defendants’ Rule 12(b)(6) motion to dismiss for failure
to state a claim, holding that, based on the pleadings and on matters available
in the public record, res judicata barred Hall’s claims.
      Hall filed his first complaint on June 1, 2005, and alleged that he was
terminated for reporting supposed violations of CAP’s policy. The district court
dismissed his suit for failure to conform his complaint to the requirements of
Rule 8(a) of the Federal Rules of Civil Procedure. In that case, Hall’s arguments
centered on his termination from CAP. In his original complaint, Hall stated
that, as a CAP member, he “reported or forwarded extensive violations of
company policy, criminal law, resulting cover-up investigations, and other
matters” and that he “was terminated and otherwise retaliated against” for
doing so. The magistrate judge ordered Hall to amend his first amended
complaint to include the “‘time, place or person details concerning the alleged
reporting of violations,’ and to ‘set[] forth sufficient factual allegations and the
legal basis upon which the Plaintiff believes that the . . . defendants are liable

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to him for monetary damages.’” Hall v. Civil Air Patrol, Inc., 193 F. App’x 298,
299 (5th Cir. 2006) [hereinafter Hall I] (first alteration in original). Hall’s
second amended complaint, however, was seventy-five pages long, named 177
defendants (including CAP), and failed to address the deficiencies noted by the
magistrate judge. Id. As a result, the district court dismissed Hall’s complaint
with prejudice, we affirmed, and the Supreme Court denied Hall’s petition for
certiorari. Id. at 300, cert. denied, 127 S. Ct. 2134 (2007) (mem.).
      Hall filed his second complaint on December 8, 2006, against the United
States Air Force, the United States Department of Defense, and the United
States. In it, he alleged that the defendants violated the FTCA by terminating
his CAP membership for “contacting regulatory and elected officials.” He further
stated that he “has continually sought restoration” of his CAP membership. The
district court adopted the magistrate judge’s recommendation and dismissed
Hall’s complaint with prejudice by granting defendants’ Rule 12(b)(6) motion to
dismiss based on res judicata. Hall v. United States, No. 6:06-CV-528, 2008 WL
276397, at *1 (E.D. Tex. Jan. 30, 2008) [hereinafter Hall II]. Hall did not appeal
this judgment.
      Hall’s current complaint alleges Bivens claims against the defendant
individuals. In his complaint, he asserts that “[t]he defendants continue to
deprive” him of various constitutional, statutory, and regulatory rights by
barring him “from membership and participation in [CAP], for the stated reason
that [he] contacts government and elected officials to report crime and violations
of policy.” Defendants filed a Rule 12(b)(6) motion to dismiss, alleging that res
judicata barred Hall’s claims. Hall filed a response in opposition to the motion
to dismiss and, after the magistrate judge’s recommendation to grant the motion,
an objection to the magistrate judge’s conclusion. The district court nonetheless
adopted the magistrate judge’s recommendation to grant the motion to dismiss.
After taking judicial notice of the publicly available pleadings and opinions in

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Hall I and Hall II (both of which were decided by the same district court), the
lower court held that the four requirements of res judicata were satisfied based
on the facts alleged by Hall in his pleading and the judicially noticed facts.
First, the lower court held that Hall named the current defendants or their
privies in his prior suits. Second, it held that the prior judgments were entered
by a court of competent jurisdiction. Third, the prior suits were concluded by a
final judgment on the merits. And finally, it held that Hall’s current suit
involved the same claim as his prior suits because the claims were based on the
same nucleus of operative fact: that “Hall believes his CAP membership
termination was unlawful.” Hall filed timely notice of appeal in which he asserts
that his current claim is based only on CAP’s recent refusals to grant him
membership and, as such, it does not involve the same claim as his prior
complaints for purposes of res judicata.
                               II. DISCUSSION
A.    Standard of Review
      We review de novo both a dismissal under Rule 12(b)(6), Lovelace v.
Software Spectrum Inc., 78 F.3d 1015, 1017 (5th Cir. 1996), and the res judicata
effect of a prior judgment, Test Masters Educ. Servs., Inc. v. Singh, 428 F.3d 559,
571 (5th Cir. 2005). We have said that “[m]otions to dismiss are viewed with
disfavor and are rarely granted,” and that “generally a res judicata contention
cannot be brought in a motion to dismiss; it must be pleaded as an affirmative
defense.” Test Masters, 428 F.3d at 570 & n.2. But see 5B CHARLES ALAN
WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE                 AND

PROCEDURE § 1357 at 721, 728 (3d ed. 2004) (“Other affirmative defenses that
have been considered on a motion to dismiss under Rule 12(b)(6) include . . . the
barring effect of res judicata and related preclusion principles . . . .” (noting
numerous examples)). However, we have also emphasized that the appellant
must challenge on appeal a defendant’s use of a motion to dismiss to invoke res

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judicata or such argument will be waived. E.g., Test Masters, 428 F.3d at 570
n.2 (“However, [appellant] did not challenge [appellees’] ability to argue res
judicata in a motion to dismiss rather than in their response or a motion for
summary judgment. Therefore, we review the district court’s dismissal of
[appellant’s] claims under the 12(b)(6) standard.” (internal citation omitted));
Norris v. Hearst Trust, 500 F.3d 454, 461 n.9 (5th Cir. 2007) (“While we have
said that ‘generally a res judicata contention cannot be brought in a motion to
dismiss,’ we have likewise held that any such contention is waived by failure to
properly raise it on appeal.” (quoting Test Masters, 428 F.3d at 570 n.2)).
Although Hall is proceeding pro se, he has failed to preserve any challenge to the
defendants’ use of a motion to dismiss to raise the issue of res judicata. See
Longoria v. Dretke, 507 F.3d 898, 901 (5th Cir. 2007) (“Although we liberally
construe pro se briefs, such litigants must still brief contentions in order to
preserve them.”). Thus, as in Test Masters, we review the district court’s
dismissal under the Rule 12(b)(6) standard.
      In ruling on a Rule 12(b)(6) motion to dismiss, the district court cannot
look beyond the pleadings, Cinel v. Connick, 15 F.3d 1338, 1341 (5th Cir. 1994),
and must “accept[] as true those well-pleaded factual allegations in the
complaint,” Test Masters, 428 F.3d at 570. In addition to facts alleged in the
pleadings, however, the district court “may also consider matters of which [it]
may take judicial notice.” Lovelace, 78 F.3d at 1017–18. And “it is clearly proper
in deciding a 12(b)(6) motion to take judicial notice of matters of public record.”
Norris, 500 F.3d at 461 n.9; see also Cinel, 15 F.3d at 1343 n.6 (“In deciding a
12(b)(6) motion to dismiss, a court may permissibly refer to matters of public
record.”). If, based on the facts pleaded and judicially noticed, a successful
affirmative defense appears, then dismissal under Rule 12(b)(6) is proper.




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Kansa Reinsurance Co., Ltd. v. Cong. Mortgage Corp. of Tex., 20 F.3d 1362, 1366
(5th Cir. 1994).1
B.       Res Judicata
         Res judicata, or claim preclusion, has four requirements: (1) that the
parties be identical or in privity; (2) that the prior judgment be rendered by a
court of competent jurisdiction; (3) that the prior action be concluded by a final
judgment on the merits; and (4) that the same claim be involved in both actions.
Test Masters, 428 F.3d at 571.
         The first three requirements may be disposed of quickly because Hall
raises no challenge to the district court’s conclusions that these requirements are
satisfied. First, Hall does not argue here that any one of the defendants is not
a party in either Hall I or Hall II or is not in privity with a previously named
party.       Second, the prior judgments were entered by courts of competent
jurisdiction. And third, both Hall I and Hall II were final judgments on the


         1
          The Supreme Court’s recent decision in Jones v. Bock, 127 S. Ct. 910 (2007), holds no
different. There, the Court held that the Prison Litigation Reform Act of 1995, 42 U.S.C.
§ 1997e et seq., did not require prisoner–plaintiffs to “specially plead or demonstrate
exhaustion in their complaints.” Id. at 921. That is to say, district courts may not dismiss
under Rule 12(b)(6) a prisoner’s complaint if that complaint failed to explicitly allege facts
disproving an affirmative defense—specifically, that the prisoner exhausted his administrative
remedies. However, the Court was quick to point out that a prisoner’s pleadings might allege
facts that satisfy an affirmative defense and that, in that situation, a motion to dismiss is still
proper. See id. at 921 (stating “that is not to say that failure to exhaust cannot be a basis for
dismissal for failure to state a claim,” and “[w]hether a particular ground for opposing a claim
may be the basis for dismissal for failure to state a claim depends on whether the allegations
in the complaint suffice to establish that ground”). We have similarly stated as much: “Under
Jones, however, a court can dismiss a case prior to service on defendants for failure to state a
claim, predicated on failure to exhaust, if the complaint itself makes clear that the prisoner
failed to exhaust.” Carbe v. Lappin, 492 F.3d 325, 328 (5th Cir. 2007). Thus, an affirmative
defense may serve as the proper basis for a motion to dismiss for failure to state a claim so long
as the district court considers only those pleaded and judicially noticed facts that are not
“outside the pleadings” according to Rule 12(d). See FED. R. CIV. P. 12(d) (“If, on a motion
under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to . . . the court, the
motion must be treated as one for summary judgment under Rule 56.”); Cinel, 15 F.3d at 1343
n.6 (noting that the consideration of judicially noticed public records “does not convert [a
12(b)(6)] motion into one for summary judgment”).

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merits. See Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 399 n.3 (1981)
(“The dismissal for failure to state a claim under Federal Rule of Civil Procedure
12(b)(6) is a ‘judgment on the merits.’”); Fernandez-Montes v. Allied Pilots Ass’n,
987 F.2d 278, 284 n.8 (5th Cir. 1993) (“A dismissal which is designated with
prejudice is normally an adjudication on the merits for purposes of res judicata.”
(internal quotation marks omitted)).
      To determine whether the current and previous actions involve the same
claim, this court has adopted the transactional test of the Restatement (Second)
of Judgments § 24. Petro-Hunt, L.L.C. v. United States, 365 F.3d 385, 395 (5th
Cir. 2004).     Under this test, “‘[w]hat factual grouping constitutes a
“transaction” . . . [is] to be determined pragmatically, giving weight to such
considerations as whether the facts are related in time, space, origin, or
motivation, whether they form a convenient trial unit, and whether their
treatment as a unit conforms to the parties’ expectations or business
understanding or usage.’”     Id. at 396 (quoting RESTATEMENT (SECOND)          OF

JUDGMENTS § 24(2) (1982)). At bottom, “[t]he critical issue is whether the two
actions are based on the same nucleus of operative facts.” Test Masters, 428 F.3d
at 571 (internal quotation marks omitted).
      In arguing that res judicata’s fourth requirement is not met, Hall asserts
that this suit does not involve the same claim as his prior suits because here he
challenges “the current and recent refusals to grant membership into CAP” and
not his termination from CAP. Further, he argues that he could not have
challenged the denials of membership in the earlier suits “since they had not
occurred at the time.” The lower court disagreed, however, and concluded that
Hall’s current claim shared the same nucleus of operative fact with Hall’s prior
suits because all of Hall’s claims allege that the defendants are retaliating
against him for being a “whistleblower who exposed the illegal activities of other



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members” of CAP. Therefore, the fourth and final requirement of res judicata
was satisfied and Hall’s claim was dismissed.
      We agree with the lower court. In Hall I and Hall II, Hall argued that his
CAP membership was illegally terminated in retaliation for “contacting
regulatory and government officials.”       Now, Hall’s brief argues that the
defendants denied his application to CAP in furtherance of their alleged “policy
of denying civilians membership into . . . CAP [for] contact[ing] their own
government.” And further, Hall’s argument that he could not have earlier
challenged the wrongful denial of membership is belied by the fact that his
complaint in Hall II stated that he “has continually sought restoration” to CAP.
In this case, as in his previous suits, Hall asserts that the defendants are
retaliating against him for “contacting government.” Whether such retaliation
takes the form of initially terminating Hall’s CAP membership or of
subsequently denying Hall’s reapplication to CAP does not change the fact that
both claims are based on the same nucleus of operative fact; in both instances,
Hall alleges that the defendants are punishing him for whistleblowing during
his tenure with CAP. Thus, Hall’s claim is based on the same transaction as his
earlier claims, and res judicata’s fourth and final requirement is satisfied.
      Because Hall’s own pleadings and the judicially noticed, publicly available
documents all reveal that res judicata’s four requirements are satisfied, the
district court properly granted defendants’ Rule 12(b)(6) motion to dismiss.
                             III. CONCLUSION
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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