                  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opinion should not be published and is not precedent except under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.

                               -1-
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


                                        -2-
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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