UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 01-50979
MARGARET MILLER,
Plaintiff - Appellant,
versus
UNITED STATES POSTAL SERVICE,
Defendant - Appellee.
Appeal from the United States District Court
for the Western District of Texas, Waco Division
(W-01-CA-004)
August 19, 2002
Before JOLLY, DUHÉ, and DENNIS, Circuit Judges.
PER CURIAM:*
Based on our review of the record, the district court’s
September 4, 2001 order, and the arguments of counsel, we find that
a prior action between the same parties, Miller v. United States
Postal Service, No. W-99-CA-223 (W.D. Tex. Mar. 14, 2000), has res
*
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opinion should not be published and is not precedent except under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.
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judicata effect as to the Appellant’s current lawsuit.
Accordingly, we AFFIRM.
The district court correctly recognized that a subsequent suit
is barred by principles of res judicata if: “1) the parties to both
actions are identical . . . ; 2) the judgment in the first action
is rendered by a court of competent jurisdiction; 3) the first
action concluded with a final judgment on the merits; and 4) the
same claim or cause of action is involved in both suits.” Ellis v.
Amex Life Ins. Co., 211 F.3d 935, 937 (5th Cir. 2000). Appellant
does not dispute the presence of the first and second elements.
Appellant contends, however, that the district court
incorrectly applied a res judicata bar to this lawsuit because
Miller I did not conclude with a final judgment on the merits. But
the record reveals otherwise. In Miller I, the district court
granted the Postal Service’s Motion to Dismiss, or in the
Alternative, for Summary Judgment and entered a take-nothing
judgment on Ms. Miller’s claims. Because the district court
concluded that Ms. Miller failed to state a claim on which relief
could be granted, the dismissal operates as an adjudication on the
merits. See Fed. R. Civ. P. 41(b). We acknowledge that the
district court granted the alternative motion for summary judgment
on the basis of non-exhaustion of administrative remedies and admit
that the Miller I order and judgment could have been clearer. But
the district court did not indicate that it was dismissing the
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action for lack of subject matter jurisdiction. Consequently, to
prevent the Miller I judgment from obtaining preclusive effect, Ms.
Miller should have pursued an appeal from that judgment.1 Because
she did not, we must conclude that the third res judicata element
is satisfied.
Finally, although Appellant suggests that this action and
Miller I presented the district court with “distinct fact issues,”
both asserted that the Postal Service has violated section 504 of
the Rehabilitation Act of 1973, 29 U.S.C. § 794, by failing to make
the Mexia, Texas, post office fully accessible to persons with
disabilities. Thus, the fourth element is also present.
Because the district court correctly determined that Miller I
bars the present action, we AFFIRM its order granting summary
judgment to the Postal Service.
AFFIRMED.
1
Indeed, Ms. Miller timely filed a notice of appeal from the
judgment, but later moved to dismiss the appeal.
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