author: SIMPSON, Circuit Judge:

text:
    Phillip G. ORTWEIN et al., Plaintiffs-Appellees, v. Cecil MACKEY, Individually and as President of the University of South Florida, et al., Defendants-Appellants.
    No. 73-2437.
    United States Court of Appeals, Fifth Circuit.
    April 21, 1975.

      Lawrence J. Robinson, Sarasota, Fla., Steven G. Wenzel. Gen. Counsel, Univ. of South Florida, Tampa, Fla., for defendants-appellants.
    Richard H. Frank, P. A., Tampa, Fla., Michael H. Gottesman, Washington, D. C., for plaintiffs-appellees.
    Before BROWN, Chief Judge, and TUTTLE and SIMPSON, Circuit Judges.
   SIMPSON, Circuit Judge:

On this appeal we review a district court order granting to the plaintiff-appellee, Phillip Ortwein, an injunction restraining the defendant-appellant Mackey, President of the University of South Florida, located at Tampa, Florida, from refusing to renew Ortwein’s employment contract on grounds of “non-performance” without (i) according plaintiff a pre-termination hearing in accordance with principles of due process, and (ii) allowing plaintiff’s counsel to participate actively in the conduct of that hearing. Ortwein v. Mackey, M.D.Fla.1973, 358 F.Supp. 705, 715. Since the facts are detailed in the district court opinion, a brief recital of them suffices here.

The appellee was a non-tenured member of the faculty at the University of South Florida. He was served notice by letter on March 3, 1969, that he was not being considered for a permanent position at the University. This letter was the result of a 4-3 vote against recommending tenure by the Tenure Committee of the University’s Physical Education Division, in which the plaintiff was employed as a tennis instructor. The plaintiff asked Dr. Bowers, the Director of the Physical Education Division, for an explanation of the denial of an offer to renew his contract of employment. Dr. Bowers in a memorandum of December 10, 1970 to Dr. Harris W. Dean, the then acting president of the University, listed the following reasons:

(1) Mr. Ortwein was employed to teach in the areas of functional physical education and the activity program. He was taken out of the functional program owing to lack of performance.
(2) Over the years Mr. Ortwein’s contribution has been limited to the area of tennis. His performance in this activity appears to be adequate; however, the staffing of division programs cannot afford such a specific contribution.
(3) When Mr. Ortwein was employed in 1966 he had been out of the main stream of physical education for several years. His awareness of advances in the profession is unknown. There is no indication evidenced or suggested by him concerning his contributions to the profession outside the realm of tennis classes.
(4) The entire Physical Education Division faculty was recently given the opportunity to vote on retaining or terminating Mr. Ortwein. The vote was three for and nine against his continued employment. Three faculty members abstained.

In the course of further discussions with University officials, the plaintiff was informed that the reasons for the decision not to renew his contract were that' plaintiff’s performance had been “inadequate” and “incompetent”.

Plaintiff denied the substance of reasons (1), (2) and (3) given by Dr. Bowers to Dr. Dean for the refusal to renew his contract, and sought review of the decision of the Tenure Committee by the Academic Relations Committee, whose function was to oversee intra-faculty and faculty-administration relations. A group of faculty members from this committee was empanelled to hear the plaintiff’s complaint. Shortly before the scheduled hearing date of November 17, 1971, disagreement arose over the question whether plaintiff’s counsel or personal representative would be entitled under the applicable procedural rules to participate actively in the hearing. When this issue was resolved against active participation in accordance with the extant rules, plaintiff refused to proceed before the Committee. He abandoned further pursuit of administrative remedies and filed suit in the court below for injunctive relief. The requested relief was granted and, as far as the record reflects, plaintiff continues in the employ of the University under the terms of that injunction.

On appeal the University argues inter alia that the court below erred in two significant respects: (i) in finding that the University’s decision not to renew the plaintiff’s contract infringed the plaintiff’s liberty interest, Board of Regents v. Roth, 1972, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548, thereby calling into play the requirement for a hearing; and (ii) in requiring that plaintiff’s counsel be allowed to participate actively at the required hearing.

The case was orally argued before this panel on March 20, 1974. We withheld determination on the merits pending the decision by this court on rehearing en banc of Sims v. Fox, 5 Cir. 1974, 492 F.2d 1088. The court en banc on December 30, 1974, reversed the panel opinion, Sims v. Fox, 5 Cir. 1974, 505 F.2d 857. We thereafter invited and received from the parties supplemental briefs concerning the impact of Sims v. Fox on the instant appeal. We proceed with its disposition as taught by the holding of that ease.

In Sims we held “as basic propositions” applying to cases where infringement of a liberty interest is asserted:

(1) that liberty is not infringed by the mere presence of derogatory information in confidential files and (2) the government has not infringed “liberty” unless it perpetuates untrue charges. 505 F.2d at 864.

We found that Sims’ liberty interest had not been infringed by his honorable discharge from the Air Force as a result of his pleading nolo contendere to charges of indecent exposure in the Georgia state courts. In reaching this result, we emphasized two factors: (i) Sims’ failure to contest the indecent exposure allegations which ultimately were the basis for his discharge, and (ii) the fact that Air Force regulations specifically proscribe dissemination of information regarding the reasons for Sims’ discharge to anyone other than Sims himself. Id. at 860.

Viewed against this backdrop the instant case while in part distinguishable is also in part indistinguishable. Here, the plaintiff has steadfastly asserted the falsity of the charges of non-performance and incompetence made the basis of the decision not to offer him tenure, as distinguished from Sims’ failure to contest the Georgia charges. But as to whether there has been or is likely to be communication to the public of the reasons underlying the plaintiff’s termination, Ortwein’s case closely parallels the situation in Sims.

The clear holding of Sims is that “the mere presence of derogatory information in confidential files” does not infringe an individual’s liberty interest. A corollary of this holding is the principle that infringement of one’s liberty interest can be found only where the governmental agency has made or is likely to make the allegedly stigmatizing charges public “in any official or intentional manner, other than in connection with the defense of [related legal] action.” Kaprelian v. Texas Woman’s University, 5 Cir. 1975, 509 F.2d 133, at p. 139 (1975).

Here there has been no allegation that the University has made public the reasons underlying its decision not to renew the plaintiff’s employment contract. As to the possibility of future disclosure the situation again is closely analogous to that in Sims v. Fox.

In the interim since the district court issued its opinion, the Board of Regents of the University System, pursuant to Florida Statutes, § 239.78 has promulgated a regulation, Board of Regents Operating Manual, p. 2-13J, effective November 20, 1973, requiring that the contents of faculty evaluation files as to individual teachers be kept confidential. There is hence slight likelihood of danger to the plaintiff’s liberty interest by University officials in the indefinite future. Sims v. Fox disposes of Ortwein’s contention that the conditions of his non-retention infringed his liberty interest.

The plaintiff-appellee additionally argues that the issuance of the injunction by the trial court should be sustained on the basis of protection of his property interest in continued employment at the University, Board of Regents v. Roth, supra. The trial court for reasons explicated at pages 710-711 of 358 F.Supp., held that the plaintiff-appellee had no property interest in continued employment. Its holding was based upon a careful examination of the facts • before it, considered in the light of the teachings of Board of Regents v. Roth, supra, and of Perry v. Sindermann, 1972, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570. We agree with the trial court that no property interest is involved.

It follows from what we have said that Mr. Ortwein is not entitled upon federal constitutional grounds to a hearing at which he may contest the reasons made the basis for his discharge. The injunction and order of the district court are vacated and set aside, and that court is directed upon remand to dismiss the complaint.

Reversed and remanded.

      . The Tenure Committee was composed of tenured faculty in the Physical Education Division. That committee’s action was advisory only. The University’s “Staff Handbook” (1970 ed.) provided at p. 25: “Upon nomination of the President, review by the Chancellor, and approval by the Board, tenure will be granted.” Thus, the Board of Regents of the state University System holds the ultimate power to grant or to deny tenure, with the Chancellor (the chief administrative officer of the University System) exercising intermediate review.

      . At the time of Ortwein’s request for a hearing the Academic Relations Committee was apparently an unseasoned body. The Committee submitted copies of its proposed procedural rules to the plaintiff for his review and comment. Except for suggesting one minor change, plaintiff, at the time assisted by a professor of constitutional law at the University, lodged no objection to the proposed rules. The rule regarding the assistance of counsel in pertinent part read:
      The parties involved . . . will have the right to legal counsel in an advisory capacity. Such counsel will not have the right to make statements concerning his client nor to examine or cross-examine witnesses.

      . Counsel for the University stated at oral argument that no one outside the University has ever been made aware of the reasons for the non-renewal of the plaintiff’s contract.

      . The statute provides:
      239.78 Records of personnel. — Regulations of the Florida board of regents may prescribe the content and custody of limited access records which an institution in the state university system may maintain on its employees. Such records shall be limited to information reflecting evaluations of employee performance and shall be open to inspection only by the employee and by officials of the institution who are responsible for supervision of the employee. Except as required for use by the president in the discharge of his official responsibilities, the custodian of limited access employee records may release information from such records only upon authorization, in writing, from the employee or upon order of a court of competent jurisdiction.

      . The regulation provides:
      The contents of the faculty evaluation file shall be confidential and shall not be disclosed except to the affected faculty member and those whose duties require access to the file in accordance with each university’s evaluation procedures.

      . Plaintiff’s counsel in post-argument submission contends that the Board of Regents regulation, note 5 supra, is distinguishable from the regulation which we found to give adequate protection against disclosure in Sims v. Fox, 5 Cir. 1974, 505 F.2d 857, 860. There the Air Force regulation in question proscribed “the narrative reasons for separation”, while the Board of Regents regulation here prohibits disclosure of the “contents of the faculty evaluation file.” Counsel argues that the regulation here is less protective than the one in Sims because it does not prevent disclosure of the “narrative reasons” for the non-renewal of plaintiff’s contract. We are unpersuaded. The obvious intent and meaning of the Regents’ regulation here under scrutiny is to require that the “contents” (in the broad sense) of the faculty evaluation file remain confidential. Our view is that narrative disclosure is prohibited as well as disclosure of the actual reports in the file or of copies thereof.

      . We pretermit discussion of the additional questions posed by the appeal: (i) whether the discharge for “non-performance” was stigmatizing and (ii) whether, assuming arguendo the necessity for a due process hearing, plaintiff would be entitled to the active assistance of counsel at that hearing.


source: Caselaw Access Project

author: SIMPSON, Circuit.Judge:

license: Public Domain

text:
    James R. ADAMS et al., Plaintiffs-Appellants, v. Reuben O’D. ASKEW, as Governor of the State of Florida, et al., Defendants-Appellees.
    No. 73-3927.
    United States Court of Appeals, Fifth Circuit.
    April 21, 1975.

      Charles R. Holley, Naples, Fla., Jack F. White, Jr., Clearwater, Fla., for plaintiffs-appellants.
    Robert L. Shevin, Atty. Gen., of Fla., J. W. Chalkley, Jerry E. Oxner, Asst. Attys. Gen., Dept, of Legal Affairs, E. Burke Jolly, Asst. Gen. Counsel, Tallahassee, Fla., for defendants-appellees.
    Before DYER, SIMPSON and CLARK, Circuit Judges.
   SIMPSON, Circuit.Judge:

Plaintiffs-appellants, James R. Adams, James B. Sanderlin and Jack Murphy brought suit below as a class action on behalf of all candidates for state office in Florida who qualified in 1972 by paying the filing fees imposed by Fla.Stat. Secs. 99.061, 99.092, 103.121 and 105.-031(3), seeking both a declaratory decree under Title 28, U.S.C., Sec. 2201 that the statutes were unconstitutional, and a refund of the filing fees. Jurisdiction was invoked pursuant to Title 42, U.S.C., Sec. 1983 and Title 28, U.S.C., Sec. 1343.

Fla.Stat. Secs. 99.061, 99.092, and 103.-121 required candidates for nonjudicial state offices to pay a filing fee of up to 5% of the annual salary of the office sought, 3% going to the state and 2% going to the candidate’s political party unless reduced by the party executive committees. Named plaintiffs and the class they represent were able to pay and did pay the filing fees without any asserted undue burden on their financial resources.

The district court held that the Florida statutes were constitutional on their face and as applied to plaintiffs and dismissed the complaint for failure to raise any substantial constitutional issue. We affirm.

Plaintiffs presented to the court below and urge on appeal three challenges to the 1972 Florida scheme: (1) the Florida statutes were unconstitutional under Bullock v. Carter, 1972, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 and Lubin v. Panish, 1974, 415 U.S. 709, 94 S.Ct. 1315, 39 L.Ed.2d 702, because they failed to provide an alternative means for candidate access to the ballot for those able but unwilling to pay the statutory fee; (2) the Florida statutes, by failing on their face to provide an alternative means of qualifying for indigents, a class constitutionally exempt under Bullock and Lubin, were void and unconstitutional as to all in spite of a three-judge court order then in effect in Fair v. Taylor, M.D.Fla.1972, 359 F.Supp. 304, vacated 1974, 416 U.S. 918, 94 S.Ct. 1916, 40 L.Ed.2d 276, enjoining the exaction of fees from indigent candidates; and (3) the Florida statute requiring a filing fee from candidates running in nonpartisan judicial elections is arbitrary and serves no valid governmental interest. We deal with each challenge in turn.

Plaintiffs first assert that the Supreme Court decisions in Bullock and Lu-bin required Florida to provide an alternative means of access to the ballot for those potential candidates who were able but simply unwilling to pay the required fee. They distill from these cases the rule that, regardless of indigency, any kind of filing fee other than a processing fee is unconstitutional per se, unless an alternative means of access to the ballot is provided by statute.

The district court ruled that plaintiffs misunderstood the constitutional thrust of Bullock and the order entered in Fair. We agree. Under the reasoning of Bullock and the recent Supreme Court decision in Lubin, decided subsequent to the dismissal below, we hold that plaintiffs are not entitled to a refund because the State of Florida was not constitutionally compelled to provide candidates able to pay the filing fees another route to the ballot.

In Bullock and Lubin, indigent candidates and their voting supporters successfully challenged fee systems which excluded their effective participation in the political process solely because of their indigency. Contrary to plaintiffs’ assertions, however, the Supreme Court did not hold in either case that all filing fees exceeding processing costs are unconstitutional per se. Indeed, the Supreme Court specifically stated in Bullock that,

It must be emphasized that nothing herein is intended to cast doubt on the validity of reasonable candidate filing fees ... in other contexts.

405 U.S. at 149, 92 S.Ct. at 859, 31 L.Ed.2d at 103. What the Court did hold was that States may not exact filing fees that are “so patently exclusionary as to violate traditional equal protection concepts”, Lubin, 415 U.S. at 715, n. 4, 94 S.Ct. at 1319, 39 L.Ed.2d at 708, commenting upon the holding in Bullock, and that

in the absence of reasonable alternative means of ballot access, a State may not, consistent with constitutional standards, require from an indigent candidate filing fees he cannot pay.

Lubin, 415 U.S. at 718, 94 S.Ct. at 1321, 39 L.Ed.2d at 710.

These decisions were bottomed upon the Supreme Court’s assessment of the impact of the fee system upon voters. Because the right to vote is a “fundamental” one, see Harper v. Virginia State Board of Elections, 1966, 383 U.S. 663, 667, 86 S.Ct. 1079, 1081-82, 16 L.Ed.2d 169, 172-73, where the fees exacted have “a real and appreciable impact on the exercise of the franchise”, based solely upon lack of wealth and inability to translate voter support into dollars, a strict standard of review is to be applied. Bullock, 405 U.S. at 144, 92 S.Ct. at 856, 31 L.Ed.2d at 100; see Harper v. Vance, N.D.Ala.1972, 342 P.Supp. 136, 142. In Lubin, the state’s legitimate interests in limiting the size of its ballots and insuring that only serious candidates appeared on the ballots conflicted with the right of voters whose effective participation in the political process was substantially impaired by the absolute disqualification of serious but indigent candidates. The fee system, which provided the sole method of access to the ballot, could not withstand strict scrutiny where less restrictive means of control were available to the state.

Unlike the rights of voters, the right to candidacy has not as yet been accorded fundamental status. Bullock, 405 U.S. at 142-43, 92 S.Ct. at 855, 31 L.Ed.2d at 99. Nor does the mere existence of limitations affecting the exercise of the right to vote compel close scrutiny. Bullock, 405 U.S. at 143, 92 S.Ct. at 856, 31 L.Ed.2d at 99. Plaintiffs’ only hope of invoking a strict standard of review rests upon their ability to show impairment of the rights of voters, a matter which they failed to assert. But even if they had in fact asserted adverse voter impact and advanced their own interests as voters, strict review under the circumstances would still be inappropriate.

Plaintiffs fail to recognize that there exists a qualitative difference in the impact on voters of mandatory filing fees assessed candidates able but unwilling to pay and candidates unable to pay. In the latter situation, the statutory scheme without more denies indigent candidates the right to run for office and thus may operate to deprive poorer voters of the opportunity to vote for candidates of their choice. In the former, however, it is not the statute which perforce restricts the ballot but the candidate’s decision to pay or not to pay as a prerequisite to having his name placed on the ballot. The difference in ability to exercise discretion in determining whether to seek a place on the ballot is crucial. The indigent lacks this choice, which the non-indigent can and does exercise.

Voters’ rights are not infringed where a candidate chooses not to run because he is unwilling to comply with reasonable state requirements. They are no more affected by a candidate’s unwillingness to pay a reasonable filing fee than they are when he refuses to comply with financial disclosure laws, or, for that matter, a reasonable petitioning requirement. See Mathews v. Little, 5 Cir. 1974, 498 F.2d 1068. The Bullock Court was concerned with “disparity in voting power based on wealth”, 405 U.S. at 144, 92 S.Ct. at 856, 31 L.Ed.2d at 100, whereby affluent voters have access to the ballot or can ensure placement for their favorites, but less affluent voters do not and cannot. Id. When indigent candidates have access, through a petitioning process or otherwise, this disparity ceases, and with it the need to invoke a stricter standard of review also ceases.

The fee requirement withstands constitutional attack under the rational basis test. Requiring a fee of nonindigent candidates is a rational means of furthering the state’s interests in regulating the size of the ballot, avoiding voter confusion and clogging of election machinery, assuring that the winner is the choice of at least a strong plurality of voters while avoiding runoff elections, limiting the ballot to serious candidates, and defraying expenses. See Bullock, 405 U.S. at 145, 147, 92 S.Ct. at 857-58, 31 L.Ed.2d at 100-101, 102; Lubin, 415 U.S. at 712-13, 715-16, 94 S.Ct. at 1318, 1319, 39 L.Ed.2d at 706-707, 708. As the Supreme Court noted, “There may well be some rational relationship between a candidate’s willingness to pay- a filing fee and the seriousness with which he takes his candidacy,” where he has adequate resources. Bullock, 405 U.S. at 145-46, 92 S.Ct. at 857, 31 L.Ed.2d at 101 (footnote omitted).

Plaintiffs next contend that the Florida statutes, by failing on their face to exempt or provide alternatives for indigents, were void in toto and for that reason could not be applied to them. They argue that only the Florida legislature could correct this supposed defect, and regard as inconsequential the three-judge court order in effect during the 1972 elections, providing a petitioning process for indigent candidates.

Plaintiffs lack standing to assert the rights of indigent candidates and voters, adequately protected by the order in effect in 1972 in Fair. See Flast v. Cohen, 1968, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947; Tileston v. Ullman, 1943, 318 U.S. 44, 63 S.Ct. 493, 87 L.Ed. 603. They also confuse an attack on the.constitutionality of a statute on its face with an attack on the statute as applied. As discussed above, the Florida statutes were not unconstitutional on their face, nor as applied to the present class of plaintiffs.

A federal court has

“no jurisdiction to pronounce any statute, either of a state or of the United States, void, because irreconcilable with the constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies . ” [Ojne to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional.

United States v. Raines, 1960, 362 U.S. 17, 21, 80 S.Ct. 519, 522, 4 L.Ed.2d 524, 529. The rationale for the rule may disappear

where the statute in question has already been declared unconstitutional in the vast majority of its intended applications, and it can fairly be said that it was not intended to stand as valid, on the basis of fortuitous circumstances, only in a fraction of the cases it was originally designed to cover. (Citation omitted) The same situation is presented when a state statute comes conclusively pronounced by a state court as having an otherwise valid provision or application inextricably tied up with an invalid one. (Citation omitted); or possibly in that rarest of cases where this Court can justifiably think itself able confidently to discern that Congress would not have desired its legislation to stand at all unless it could validly stand in its every application.

362 U.S. at 23, 80 S.Ct. at 523-24, 4 L.Ed.2d at 530.

None of these exceptions or others referred to by the Court in Raines nor any others that come to mind, require us to hold the statutes unconstitutional in their entirety. Without serious doubt, the Florida legislature desired the statute to be applied to its fullest constitutional reach even if inapplicable to indigents. See Fla.Stat. Secs. 99.092 et seq. (1974), providing a petitioning process for indigents but continuing to exact fees from nonindigents.

Finally, plaintiffs attack the assessment of qualifying fees upon judicial candidates. They argue that there can be no justification whatsoever for assessing any fee against candidates for judicial office. None of the fees collected was channeled to political parties because the elections are nonpartisan. The ballot, they believe, was already restricted because most candidates must be attorneys and only candidates who have been members of the Florida bar for over five years are eligible to qualify for more than one-half of the judicial offices. Appellants infer from these facts that the fee was no more than a tax on the right to run for judicial office. Further, they contend that judicial candidates were severely hampered by the Florida Standards of Judicial Conduct and by Florida Statutes 105, in their ability to solicit funds, allegedly a greater disability than that facing indigents assessed a fee.

We fail to see any persuasive distinction in the constitutionality of a fee charged candidates running in a partisan election and those running in nonpartisan elections. Labeling a fee a “tax” does not illuminate the issues or direct a result. The state’s interests furthered by assessment of a fee apply equally to judicial candidates. The qualification requirements urged as effectively restricting the ballot can be met by many of the thousands of attorneys practicing in the State of Florida and we cannot say the legislature was acting without a rational basis in imposing the fee on judicial candidates. If these candidates were seriously hampered in their ability to solicit funds — which we doubt in view of the obvious success of the named plaintiffs and the class of over 500 they represent, who actually paid fees totaling $887,400 —they could have been exempted on a claim of indigency under the order in Fair.

We decline to consider other issues raised for the first time on appeal.

Affirmed.

      . The statutes involved in this suit have been amended. See Fla.Stat. Secs. 99.092 et seq. (1974). The validity of this new statutory scheme is not before us.

      . Appellants did not seek refunds for amounts paid the political parties.

      . Plaintiffs acknowledge that footnote 29 in Bullock supports the imposition of a processing fee.
      This would be a different case if the fees approximated the cost of processing a candidate’s application for a place on the ballot, a cost resulting from the candidate’s decision to enter a primary. The term filing fee has long been thought to cover the cost of filing, that is, the cost of placing a particular document on the public record. 405 U.S. at 148, 92 S.Ct. at 858, 31 L.Ed.2d at 102. They attack the fees collected in 1972, however, because they exceed the cost of processing the application. They point out, for example, that a candidate for legislative office could be assessed $600 while a candidate running for circuit judge in the same geographical area could be assessed $1600 solely because the fee varies with the salary of the office sought.

      . Many potential office seekers lacking both personal wealth and affluent backers are in every practical sense precluded no matter how qualified they might be, and no matter how broad or enthusiastic their popular support.

        Buliock, 405 U.S. at 143, 92 S.Ct. at 856, 31 L.Ed.2d at 100. Further, “While qualifying schemes do not expressly prohibit indigents from becoming candidates, in effect, because the exercise of rights of candidacy is conditioned on a monetary payment, the classification is quite similar to an express prohibition.” Comment, The Constitutionality of Qualifying Fees for Political Candidates, 120 U.Pa.L.Rev. 109, n. 31 at 112 (1971).

      . See Harper v. Vance, N.D.Ala.1972, 342 F.Supp. 136, 143, where the Court recognized that, “Requiring a fee of those able to pay it may help discourage some financially secure, frivolous candidates,” and that “lack of seriousness may well be inferred where one is able, but merely unwilling, to pay a fee.”

      . Fair v. Taylor, M.D.Fla.1972, 359 F.Supp. 304, vacated 1974, 416 U.S. 918, 94 S.Ct. 1916, 40 L.Ed.2d 276, held that the Florida statutory scheme presently under attack was unconstitutional as applied to indigents and entered an order requiring nonindigent candidates to pay and providing indigents an alternative petitioning process.

      . Apparently a reference to the Code of Ethics and the Code of Professional Responsibility, applicable to members of the integrated Florida Bar, adopted by the Supreme Court of Florida, In Re the Integration Rule of the Florida Bar, 235 So.2d 723 (Fla. 1970). The Florida Supreme Court has later promulgated a Code of Judicial Conduct, see 281 So.2d 21 (Fla. 1973).

      . Restricting the activities permitted to candidates for judicial office. See, specifically §§ 105.071 and 105.08.

      . Plaintiffs advanced for the first time by their brief on appeal and during oral argument a second ground of attack on the fees assessed judicial candidates. They contend that judicial candidates were denied equal protection because they were forced to pay a flat 5% fee while candidates for nonjudicial office only paid 3%. We note that candidates running in partisan elections were also subject to an additional 2% assessment “unless made less by the executive committee” of their respective parties. Fla.Stat. Sec. 99.092. Plaintiffs disclaim any challenge to the fees channeled to the political parties. We understand their complaint to be that judicial candidates were assessed 5% but nonjudicial candidates might have been assessed less than 5%, and that the potential for any such difference was arbitrary.
      Plaintiffs do not allege that any nonjudicial candidate in fact paid less than 5%, nor are we able to gather from the record any indication that this occurred during the 1972 elections.
      In any event, as the text indicates, we decline to consider this issue, raised for the first time on appeal and never alluded to or developed before the trial court.


author: PER CURIAM:

text:
    Oscar Cornelius GOODMAN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 74-3926
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    April 21, 1975.
    Rehearing and Rehearing En Banc Denied June 2, 1975.
    Oscar C. Goodman, pro se.
    Charles T. Erion, Asst. U. S. Atty., Ronald T. Knight, U. S. Atty., Macon, Ga., for respondent-appellee.
    Before GEWIN, GOLDBERG and DYER, Circuit Judges.

       Rule 18, 5th Cir., see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5th Cir. 1970, 431 F.2d 409, Part I.

   PER CURIAM:

The district court denied Oscar Cornelius Goodman’s motion to vacate sentence pursuant to 28 U.S.C. § 2255, and he appeals. We affirm in part and vacate in part. Appellant and two other defendants were convicted by a jury on a two-count indictment charging violations of 18 U.S.C. § 2113(a), bank robbery by force, and 18 U.S.C. § 2113(d), armed bank robbery. He was sentenced to serve twenty years on each count. This court affirmed the convictions on direct appeal. United States v. Brown, 432 F.2d 552 (5th Cir. 1970).

In this § 2255 motion appellant contends that imposition of separate sentences under each count was improper, that members of the petit jury were related to the court, and that one juror was a depositor of the bank which was robbed. The district court denied the motion on the ground that substantially the same issues were raised on prior § 2255 motions.

Appellant is clearly entitled to relief on his first contention. Separate penalties under subsections (a) and (d) of § 2113 are improper whether made to run consecutively or concurrently. United States v. Vasquez, 504 F.2d 555 (5th Cir. 1974); Burger v. United States, 454 F.2d 723 (5th Cir. 1972); United States v. Foy, 441 F.2d 398 (5th Cir. 1971); United States v. White, 440 F.2d 978 (5th Cir. 1971), cert. denied, 404 U.S. 839, 92 S.Ct. 129, 30 L.Ed.2d 72. The various subsections of § 2113 were not intended to establish separate, independent offenses, but created a gradation of different maximum punishments for a single offense — stealing property from a federally-insured institution. Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957); Sullivan v. United States, 485 F.2d 1352 (5th Cir. 1973); United States v. Foy, supra; United States v. White, supra. We therefore vacate the sentence imposed under subsection (a) and leave effective the twenty-year sentence under subsection (d). See United States v. Vasquez, supra; Sullivan v. United States, supra.

Appellant’s allegations regarding the jury, however, lack merit. He claims that relatives of the trial judge were discovered to be on the jury and that the court denied a defense motion to dismiss those jurors. The transcript of the jury selection process belies his allegations. After all peremptory challenges had been exhausted, defense counsel noted that two of the jurors possessed the same surname, Robinson. When asked whether they were related, Mr. Robinson replied, “Her husband is my first cousin.” Upon further questioning by the court both jurors said that such a distant familial relationship would have no bearing on their deliberations. Appellant has demonstrated no prejudice stemming from the district court’s decision to allow the Robinsons to continue sitting on the jury, and it is clear they were not related to the trial judge. Appellant’s allegation concerning the presence of a depositor of the robbed bank on the jury similarly fails. Defense counsel had an opportunity to challenge him but chose not to do so. The fact that a juror is a depositor of the bank in question does not automatically require his disqualification. The issues raised by appellant concerning composition of the jury are therefore unmeritorious and the district court correctly denied relief as to them.

Affirmed in part, vacated in part.


author: CRAVEN, Circuit Judge.

text:
    Helmuth SCHERER, Appellee, v. John A. COSGROVE, Appellant.
    No. 73-1191.
    United States Court of Appeals, Fourth Circuit.
    Argued Jan. 6, 1975.
    Decided Feb. 19, 1975.

      Walter L. Penn, III, Asst. Atty. Gen. of Va., and T. J. Markow, Richmond, Va. (Andrew P. Miller, Atty. Gen. of Va., and Shaia, Stout & Markow, Richmond, Va., on brief), for appellant.
    Helmuth Scherer, pro se.
    Before CRAVEN, BUTZNER and WIDENER, Circuit Judges.
   CRAVEN, Circuit Judge.

On October 31, 1973, we vacated the judgment of the district court and remanded this case for findings of fact and conclusions of law as required by Rule 52(a) of the Federal Rules of Civil Procedure. On January 3, 1974, the district court entered an order containing its findings and conclusions, and reaffirmed its prior judgment. Cosgrove, by his counsel, the Attorney General of Virginia, again appeals, and we reverse.

It is undisputed that Cosgrove was an employee of the Virginia Department of Labor and Industry charged with responsibility for enforcing the state statute that makes it a misdemeanor for an employer to fail to pay its employees wages or salaries due for work performed during a pay period. It is also clear (the district court so found) that Cosgrove acted in response to complaints of employees of Computer Graphics Associates, Inc. in initially causing warrants to issue for the arrest of Scherer, who was then president and a major stockholder of the corporation. These employees have never been paid, despite (as found by the district judge) the granting of a continuance by the state court in order to give Scherer time to pay the back wages. The record also establishes (and the district judge so found) that the state court found Scherer guilty on several counts of failure to pay wages and sentenced him to 30 days on each count plus a fine of $100.

In spite of these undisputed facts: the duty of Cosgrove to prosecute wage cases, the failure of the employer to pay the wages, and conviction on the merits in the state court, the district judge nevertheless concluded that Cosgrove violated Scherer’s civil rights when he caused Scherer’s numerous arrests for failure to pay wages. The district judge reasoned that when a corporation is the employer the warrant must issue against the corporation and not its managing officer. He also concluded that the offense made punishable by the statute is a course of conduct and that it is not a separate offense to fail to pay each employee each pay period. Even with the benefit of briefs and oral argument we are not at all certain, as was the district judge, that the chief executive of a corporation cannot be prosecuted, or that there cannot be multiple offenses per employee and pay period. Our inability either to accept or reject the district judge’s conclusions with confidence points up that these are questions of state law that can be authoritatively answered only by Virginia’s highest court.

Although Virginia’s highest court has not passed on these questions, two lower state courts did so during Scherer’s criminal prosecutions in this matter. The trial court allowed Scherer to be prosecuted as the responsible party and permitted multiple counts based on different employees. The record indicates that on Scherer’s appeal the trial court was reversed on the latter point only. There are also two Opinions of the Attorney General of Virginia on the question of whether a managing officer of a corporation can be charged with failure to pay wages to corporate employees: a 1965 Opinion said no, while a later one dated October 28, 1970, said yes.

Despite these conflicting rulings by the Virginia judiciary and executive, the district judge held that Cosgrove violated Scherer’s civil rights

when he caused, under color of state law, Scherer’s numerous arrests for violating Virginia Code § 40 — 24 (failure to pay an employee for work performed) when he knew, or should have known, that the complaining employees were employees of the corporation.
[and] when he knew, or should have known, that the offense made punishable under Virginia Code § 40 — 24 is a course of conduct — that is, one offense, not fifteen or twenty offenses

These conclusions of law will not support a judgment of liability under 42 U.S.C. 1983. An essential element is missing: that Cosgrove acted without probable cause when he issued multiple warrants against Scherer. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). Even if we read the district judge’s words “knew or should have known” to mean that Cosgrove lacked probable cause for the arrests, we think the findings of fact do not support such a conclusion. As we read the record there is nothing to suggest that Cosgrove acted without probable cause except the district judge’s conclusion of law that the Virginia statute does not reach the president of a corporation and does not permit multiple counts based on different persons and pay periods. But the state trial judge thought differently, the Attorney General of Virginia has recently opined otherwise on the latter point, and neither question has been finally settled by the Virginia Supreme Court. Whatever the right view of the statute, we think Cosgrove’s interpretation is not unreasonable, and indeed may be more faithful to the presumed legislative purpose to assure that workers get paid for work performed than is the district court’s interpretation. Furthermore, the record on appeal indicates, although the district judge did not so find, that Cosgrove acted pursuant to his usual practice approved by his superiors, and that on prior occasions such a practice had been approved by local Commonwealth Attorneys. On this record we cannot say that Cosgrove lacked probable cause. The judgment below must be reversed. On remand the district court will enter an order dismissing the complaint.

Reversed and remanded.

      . Va.Code Ann. § 40-24:
      (a) All employers engaged in the operation of any business establishment shall establish regular pay periods and rates of pay for employees except executive personnel and shall pay salaried employees at least once each month and employees paid on an hourly rate at least once every two weeks or twice in each month. Upon termination of employment an employee shall be paid all wages or salaries due him for work performed prior thereto; such payment shall be made on or before the date on which he would have been paid for such work had his employment not been terminated.
      (d) An employer who violates this section shall be guilty of a misdemeanor and upon conviction shall be fined not less than twenty-five dollars nor more than one hundred dollars or confined in jail for any term not to exceed one year, or both.
      (e) The Commissioner may require a written complaint of the violation of this section and, with the written and signed consent of an employee, may institute proceedings on behalf of an employee to enforce compliance with this section, and to collect any moneys unlawfully withheld from such employee which shall be paid to the employee entitled thereto.
      We are informed that Title 40 of the Code was repealed and the provisions reincorporated in Title 40.1 of the Code by the legislature in its 1970 session. The effective date of the new amendment was October 1, 1970. The activities involved in this suit arose prior to that date.

      . Cosgrove had declined to prosecute an earlier complaint when his investigation showed it to be meritless. Even so, the district court thought him overzealous.

      . These convictions were subsequently voided on what may fairly be termed a technicality of jurisdiction. Scherer had removed the state criminal cases to federal court prior to trial. That court ruled on the day of the state trial that it would remand the cases to the state court, but failed to enter its order until some five days later. A state appellate court later ruled that on this series of events the state court had no jurisdiction over Scherer on the day of his trial.


author: AINSWORTH, Circuit Judge: RONEY, Circuit Judge

text:
    AEROJET-GENERAL CORPORATION, Plaintiff-Appellee, v. Reubin O’Donovan ASKEW, Governor of State of Florida, et al., Defendants. Metropolitan Dade County, Florida, et al., including its Board of County Commissioners and Stuart Simon, its County Attorney, Defendants-Appellants.
    No. 74-1192.
    United States Court of Appeals, Fifth Circuit.
    April 21, 1975.
    Rehearing and Rehearing En Banc Denied May 30, 1975.

      Stuart Simon, Dade County Atty., Alan T. Dimond, Asst. County Atty., Thomas C. Britton, Lawrence R. Metsch, Miami, Fla., Barry S. Richard, Deputy Atty. Gen., Dept, of Legal Affairs, William L. Rogers, Asst. Atty. Gen., Tallahassee, Fla., Marion E. Sibley, Sp. Asst. Atty. Gen., Miami Beach, Fla., for defendants-appellants.
    George W. Wright, Jr., Karl B. Block, Jr., Fred N. Kellner, Miami, Fla., James Wm. Moore, New Haven, Conn., for plaintiff-appellee.
    Before BELL, AINSWORTH and RONEY, Circuit Judges.
   AINSWORTH, Circuit Judge:

Important questions concerning the doctrine of res judicata and the Contract Clause of the United States Constitution are presented in this much-litigated dispute over title to a large tract of land in Dade County, Florida. The judgment appealed from is the result of two lawsuits. Aerojet-General Corporation brought an action in the United States District Court for the Northern District of Florida against Metropolitan Dade County, Florida, the Board of Trustees of the Internal Improvement Trust Fund (a Florida state agency), and the Board of Education of the State of Florida, seeking declaratory and injunctive relief to prevent defendants from instituting or prosecuting suits in Florida state courts to deny Aerojet’s title to the land involved. Jurisdiction was asserted on the basis of diversity of citizenship and the existence of a federal question. See 28 U.S.C. §§ 1331, 1332. The second suit was filed by Metropolitan Dade County against Aerojet-General Corporation in a Florida state district court to quiet title to the subject land. It was removed to the United States District Court for the Southern District of Florida by Aerojet on allegations of diversity of citizenship and existence of a federal question. See 28 U.S.C. § 1441. Subsequently the case was transferred to the Northern District. The suits were then consolidated and reciprocal motions for summary judgment were filed by the parties, there being no dispute as to the material facts. The District Court rendered judgment in favor of Aerojet, confirming its title to the land involved. 366 F.Supp. 901 (1973). Only Dade County has appealed. We affirm.

I. Background of the Present Appeal

On December 21, 1961, plaintiff Aerojet-General Corporation entered into a written agreement with the Board of Trustees of the Internal Improvement Trust Fund and the Board of Education of the State of Florida by which Aerojet was granted a ten-year leasehold in 25,313 acres of land in Dade County, Florida, and an option to purchase the land for $50 per acre at any time during the term of the lease, subject to certain qualifications.

In 1965 the Florida State Legislature enacted a statute requiring that the Trustees, upon deciding to sell state-owned land to private parties, first afford an opportunity to the county in which the land is located to receive such lands. F.S.A. § 253.111 (1975). On September 8, 1969, Aerojet notified the Trustees of its intention to exercise its option to purchase the leased property, but the Trustees refused to convey the land to Aerojet as provided in the agreement.

Aerojet then brought a diversity suit against the Trustees and the Board of Education in the United States District Court for the Northern District of Florida seeking specific performance of the option agreement to purchase the land. The principal defense was failure of consideration in that Aerojet’s manufacturing plant built on the land involved was not in full operation but was in inactive status due to the current slowdown in solid fuel rocket development. The defendant state boards did not, however, raise as a defense their obligation to the counties under the 1965 Florida statute (F.S.A. § 253.111) in disposing of state lands. On September 21, 1970, the District Court granted Aerojet’s motion for summary judgment, Aerojet-General Corporation v. Kirk, N.D.Fla., 1970, 318 F.Supp. 55, and ordered the defendants to convey the land to Aerojet. The defendant state boards appealed, and we affirmed the judgment of the District Court on December 9, 1971. 5 Cir., 453 F.2d 819, cert. denied, 409 U.S. 892, 93 S.Ct. 110, 34 L.Ed.2d 149 (1972).

On June 20, 1972, because of the state boards’ failure to transfer title in the land to Aerojet, the District Court appointed the Clerk of the United States District Court for the Southern District of Florida as a Commissioner for the purpose of executing a deed to the land in favor of Aerojet. The deed was executed immediately, and Aerojet transmitted a cashier’s check for $1,246,308.88 in payment thereof to the Trustees.

Earlier, on June 9, 1972, defendant-appellant Metropolitan Dade County, Florida brought a mandamus action in the Supreme Court of Florida against the state boards to compel them to convey the land to it, based on the 1965 enactment of the Florida Legislature requiring that public lands be offered first to the local county before being sold to private parties. F.S.A. § 253.111 (1975). The County alleged that any right which Aerojet had to acquire the land was superseded by the County’s right under the Florida statute. The state boards offered no opposition to this suit, and even more, by written pleading waived notice of hearing and affirmatively consented to the entry of the alternative writ of mandamus. Accordingly, the Supreme Court of Florida issued the requested writ of mandamus on October 11, 1972, and the Trustees, in compliance therewith, executed a deed to the land to Dade County on October 31, 1972.

On June 20, 1972, the same day that the District Court appointed the Clerk as a Commissioner to execute the deed to the land to Aerojet, the present action was initiated in the District Court by Aerojet against the state boards and Dade County. Aerojet sought an injunction against further prosecution of the mandamus action by Dade County against the state boards in the Florida Supreme Court and against any other actions regarding the disputed lands, on the ground that any assertion of rights under F.S.A. § 253.111 was barred by the prior federal court judgment under the principle of res judicata. Alternatively, Aerojet sought a judgment declaring that F.S.A. § 253.111 was inapplicable to its lease-option contract — or if applicable, was violative of the Contract Clause of the United States Constitution.

The defendants’ response to Aerojet’s plea of res judicata was that, since federal jurisdiction had been invoked on the basis of diversity of citizenship, the District Court was obliged to follow state law. Defendants contended that the Florida Supreme Court’s decision in their mandamus action was the definitive statement of Florida law on whether the prior federal court judgment was res judicata. They argued that the state court could not have reached the question whether F.S.A. § 253.111 required that the County be offered the land without implicitly holding that the prior federal court suit was not a bar, at least as to the County.

On October 31, 1972, the day the Trustees executed the deed to the land in favor of Dade County, Aerojet and the County appeared before the District Court at an emergency hearing. The Court enjoined Dade County from recording its newly acquired deed and from instituting any action to quiet title to the • property, and enjoined Aerojet from conveying any part of the disputed land.

On January 8, 1973, the District Court stayed further proceedings in Aerojet’s suit for injunctive and declaratory relief and abstained from further action' in anticipation of clarification by the state courts of Florida of the statutory issues involved in the case. Aerojet immediately appealed to this Court from the entry of this order. On January 10, 1973, Dade County, no longer under a prohibitory injunction from the federal district court, initiated its quiet title suit in Florida state court against Aerojet, which, as we have already stated, was later removed by Aerojet to the United States District Court for the Southern District of Florida.

On March 5, 1973, this Court rendered its decision on Aerojet’s appeal from the District Court’s order, and held that in view of Aerojet’s removal of the County’s quiet title suit there was no longer any reason for abstention. 476 F.2d 184. The District Court was ordered to reinstate its injunction against suits challenging Aerojet’s title and to proceed with the merits of Aerojet’s claims. (The Court also suggested that the quiet title suit be transferred to the Northern District to be consolidated with Aerojet’s suit — which, as we have said, was done.)

On November 21, 1973, the District Court rendered its decision in favor of Aerojet. Aerojet-General Corporation v. Askew, N.D.Fla., 1973, 366 F.Supp. 901. The Court held that F.S.A. § 253.111 unconstitutionally impaired the obligation of contract as applied to Aerojet’s contract, and that under the doctrine of res judicata the original federal court judgment of September 21, 1970 barred all the defendants from asserting the provisions of F.S.A. § 253.111 as a defense to Aerojet’s action to effectuate the prior judgment.

II. Res Judicata and the Prior Federal Court Judgment

A. Choice of Law: Federal or State

The District Court apparently conceded that the Florida law of res judicata governs the question whether the prior federal court judgment (rendered on September 21, 1970) barred Dade County from raising the provisions of F.S.A. § 253.111 as a defense in the action by Aerojet to effectuate that judgment. We hold, however, that federal rather than state standards are applicable.

Federal law clearly governs the question whether a prior federal court judgment based on federal question jurisdiction is res judicata in a case also brought, as this one was, under federal question jurisdiction. We believe the same result obtains where, as in this case, the first suit was brought only under diversity jurisdiction. The federal doctrine of res judicata bars relitigating any part of the cause of action in question, including all claims and defenses that were actually raised or could have been raised. The forum state’s law may be narrower than federal law on the scope of the cause of action deemed to be adjudicated for purposes of res judicata. In cases where both state law issues and federal questions are presented, if the narrower state law were applicable a party could split his cause of action and thus circumvent the federal law of res judicata, simply by not pleading his federal claim or defense. See Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 60 S.Ct. 317, 84 L.Ed. 329 (1940). In any subsequent federal court litigation, the prior case would appear to have been based only on diversity jurisdiction if the pleadings alone were considered. Looking beyond the pleadings to what could have been pleaded, however, is precisely what is required by the federal law of res judicata, and precisely what was called for in this case. The state boards could have pleaded a defense that would have brought a federal question directly into the case: their alleged obligation to Dade County under F.S.A. § 253.111. The fact that only questions of state law were actually pleaded and litigated in the prior federal court case cannot justify such frustration of the federal law of res judicata.

In Angel v. Bullington, 330 U.S. 183, 67 S.Ct. 657, 91 L.Ed. 832 (1947), the Court held that state law governs whether a state court judgment is res judicata in a subsequent federal diversity case. The Court noted, however, that “where resort is had to a federal court not on grounds of diversity of citizenship but because a federal right is claimed, the limitations upon the courts of a State do not control a federal court sitting in the State.” 330 U.S. at 192, 67 S.Ct. at 662. See Metropolitan Paving Co. v. International U. of Op. Eng., 10 Cir., 1971, 439 F.2d 300, 307; Pearlstein v. Scudder & German, 2 Cir., 1970, 429 F.2d 1136, 1144 n. 14; Williams v. Ocean Transport Lines, Inc., 3 Cir., 1970, 425 F.2d 1183, 1187—1190. The same reasoning must apply where the prior case is not brought in a state court but rather in a federal court under diversity jurisdiction.

Considering this case solely in its diversity aspect also leads us to the conclusion that the federal law of res judicata should be applied. The importance of preserving the integrity of federal court judgments cannot be overemphasized — out of respect for the federal courts and for the policy of bringing litigation conclusively to an end. If state courts could eradicate the force and effect of federal court judgments through supervening interpretations of the state law of res judicata, federal courts would not be a reliable forum for final adjudication of a diversity litigant’s claims. Nullification of a federal court judgment would be precisely the result in this case if, as Dade County urges, the District Court had been obliged to follow state law to decide the question of res judicata. Absent other reasons for declining to follow the mandamus judgment of the Florida Supreme Court, that decision would have compelled the District Court to hold that the prior federal court judgment was not res judicata as to Dade County’s assertion of F.S.A. § 253.111 as a defense.

Our research reveals only one case in which this choice of law issue has been discussed at any length. In Kern v. Hettinger, 2 Cir., 1962, 303 F.2d 333, the Second Circuit held that the question whether a federal court diversity judgment is res judicata must be determined according to federal law in a subsequent federal diversity case. We agree with the reasoning in that case:

One of the strongest policies a court can have is that of determining the scope of its own judgments. [Citations omitted] It would be destructive of the basic principles of the Federal Rules of Civil Procedure to say that the effect of a judgment of a federal court was governed by the law of the state where the court sits simply because the source of federal jurisdiction is diversity. The rights and obligations of the parties are fixed by state law. These may be created, modified and enforced by the state acting through its own judicial establishment. But we think it would be strange doctrine to allow a state to nullify the judgments of federal courts constitutionally established and given power also to enforce state created rights. The Erie doctrine [citations omitted] is not applicable here

303 F.2d at 340.

A second reason for applying federal law under these circumstances is that several procedural elements of federal practice affect the doctrine of res judicata. For example, federal law on finality of judgments, see 28 U.S.C. § 1291 (1971), and compulsory counterclaims, Fed.R.Civ.P. 13(a), is often determinative of pleas of res judicata. See Fed.R. Civ.P. 41(a); La Societe Anonyme des Parfums LeGalion v. Jean Patou, Inc., 2 Cir., 1974, 495 F.2d 1265, 1275. We see no persuasive reason to look to state law for some elements of res judicata, such as the scope of the cause of action or similarity of the parties, in light of the prominent influence of federal law on other elements of the doctrine. To do so would sacrifice the uniformity of the law which federal courts must apply. See generally, United States v. United Air Lines, Inc., E.D.Wash., 1962, 216 F.Supp. 709, 718 — 721, aff’d sub nom. United Air Lines, Inc. v. Wiener, 9 Cir., 1964, 335 F.2d 379, 404; Hughes v. Dundee Mortgage & Trust Investment Co., D.Or., 1886, 28 F. 47; IB Moore's Federal Practice ¶ 0.410 [1],

We are aware of the importance of honoring the obligation to follow substantive law in diversity cases, but as the Supreme Court has stated in a similar context, “there are affirmative countervailing considerations at work here. The federal system is an independent system for administering justice to litigants who properly invoke its jurisdiction.” Byrd v. Blue Ridge Rural Electric Cooperative, Inc., 356 U.S. 525, 537, 78 S.Ct. 893, 901, 23 L.Ed.2d 953 (1958). In this lawsuit, whether considered as a federal question case or a diversity case, we believe such considerations are present.

B. Application of the Federal Law of Res Judicata to this Case

1. Scope of the cause of action. Under the federal law of res judicata a party must raise all claims that are a part of or a defense to the cause of action under adjudication. Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591, 597, 68 S.Ct. 715, 719, 92 L.Ed. 898 (1948); Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 378, 60 S.Ct. 317, 320, 84 L.Ed. 329 (1940); Baltimore S. S. Co. v. Phillips, 274 U.S. 316, 321, 47 S.Ct. 600, 602, 71 L.Ed. 1069 (1927); Southwest E & T Suppliers, Inc. v. American Enca Corp., 5 Cir., 1972, 463 F.2d 1165, 1167; see Wasoff v. American Automobile Insurance Co., 5 Cir., 1971, 451 F.2d 767, 769 & n. 8; Astron Industrial Associates Inc. v. Chrysler Motors Corp., 5 Cir., 1968, 405 F.2d 958, 961-962; Aeree v. Air Line Pilots Association, 5 Cir., 1968, 390 F.2d 199, 203; Norman Tobacco & Candy Co. v. Gillette Safety Razor Co., 5 Cir., 1961, 295 F.2d 362, 363 — 364; IB Moore’s Federal Practice ¶ 0.401, at 12 — 13. Our most recent discussion of the tests for determining whether the substance of two actions is the same for res judicata purposes appears in the Astron case, supra:

Is the same right infringed by the same wrong? Would a different judgment obtained in the second action impair rights under the first judgment? Would the same evidence sustain both judgments?

405 F.2d at 961 — 962. Under any of these questions, the defense Dade County offers in this suit, the alleged superseding effect of F.S.A. § 253.111, is part of the same subject matter adjudicated in Aerojet’s original suit for specific performance.

The constitutionality of F.S.A. § 253.-111 as applied to Aerojet’s contract was not raised by the defendant Florida state boards in the original suit by Aerojet for specific performance, but clearly it could have been. In October 1969 the Attorney General of Florida advised the state boards of his opinion that F.S.A. § 253.-111 applied to the lease-option contract in question. Thus the state boards were fully aware that the Florida statute might possibly offer them a defense. They chose not to raise that defense and must now accept the consequences of their decision.

2. The doctrine of virtual representation. Dade County concedes that the prior federal court judgment bars the state boards from now raising the defense that F.S.A. § 253.111 obligates them to offer the land to the County. It contends, however, that since it was not a party to Aerojet’s original suit, the interests of the state boards were too distinct to permit the conclusion, reached by the District Court, that they were the virtual representative of the County.

Under the federal law of res judicata, a person may be bound by a judgment even though not a party if one of the parties to the suit is so closely aligned with his interests as to be his virtual representative. See Chicago, R. I. & P. Ry. Co. v. Schendel, 270 U.S. 611, 618, 46 S.Ct. 420, 423, 70 L.Ed. 757 (1926); Heckman v. United States, 224 U.S. 413, 445-46, 32 S.Ct. 424, 434-435, 56 L.Ed. 820 (1912); Kerrison v. Stewart, 93 U.S. 155, 160, 23 L.Ed. 843, 845 (1876); Dudley v. Smith, 5 Cir., 1974, 504 F.2d 979, 982; Astron Industrial Associates, Inc. v. Chrysler Motors Corp., 5 Cir., 1968, 405 F.2d 958, 961; Kreager v. General Electric Company, 2 Cir., 1974, 497 F.2d 468, 472; Pan American Match, Inc. v. Sears, Roebuck and Co., 1 Cir., 1972, 454 F.2d 871, 874; Robison v. Sidebotham, 9 Cir., 1957, 243 F.2d 16, 21; Jamison v. Garrett, 1953, 92 U.S.App.D.C. 232, .205 F.2d 15, 16; United States v. City of Philadelphia, 3 Cir., 1944, 140 F.2d 406, 408; United States v. Des Moines Valley R. Co., 8 Cir., 1897, 84 F. 40. Cf. Spokane & I. E. R. Co. v. Whitley, 237 U.S. 487, 35 S.Ct. 655, 59 L.Ed. 1060 (1915); Troxell v. Delaware L. & W. R. Co., 227 U.S. 434, 33 S.Ct. 274, 57 L.Ed. 586 (1913). Dade County asserts that it was in the state boards’ best interest to keep the land, rather than convey it to either Aerojet or the County, and therefore it would have been against their interests to raise F.S.A. § 253.111 as a defense to Aerojet’s specific performance suit. Assuming this assertion to be true, we nevertheless believe the interests of the state boards and the County were closely aligned.

The state boards could have retained the disputed land only by persuading the District Court that they were not under any contractual obligation to convey the land to Aerojet. Failing that, their only options were to convey the land to Aerojet or to convince the District Court that they had an overriding obligation to offer the land to Dade County, pursuant to F.S.A. § 253.111.

Clearly the state boards preferred to transfer the land to the County rather than to Aerojet. Their submissive role in the Florida state court mandamus proceeding amply demonstrates that preference. The statute required the state boards to offer the land to the appropriate county only if they decided to sell the land at all- — only if the lease-option contract with Aerojet was valid. It would not have prejudiced their alleged interest to raise F.S.A. § 253.111 as an alternative to their defense that the lease-option contract was not valid.

The question whether a party’s interests in a case are virtually representative of the interests of a nonparty is one of fact for the trial court. See Astron Industrial Associates, Inc. v. Chrysler Motors Corp., 5 Cir., 1968, 405 F.2d 958, 961. We find no reason to overturn the District Court’s determination that Dade County “was in such close relationship to the parties to the first lawsuit before this Court, that its interests or the interests of those which it represents, were represented in that proceeding.” 366 F.Supp. at 910.

III. Interpreting the Lease-Option Contract and the Florida Statute

The District Court concluded that the lease-option contract between Aerojet and the state boards did not contemplate the application of F.S.A. § 253.111 and that the statute could not be constitutionally applied to the contract. The District Court also held that the decision of the Florida Supreme Court in the mandamus action by Dade County was not controlling because of the nonadversary circumstances of that litigation. We believe the District Court’s decision was correct.

A. The Judgment of the Florida State Court

The writ of mandamus issued by the Supreme Court of Florida in favor of Dade County against the state boards rested explicitly upon the conclusion that the contract between Aerojet and the state boards was intended to permit modification by subsequent statute, such as F.S.A. § 253.111. The Florida state court judgment, like any judgment of a court of competent jurisdiction, is entitled to a presumption of regularity. See Webster v. Estelle, 5 Cir., 1974, 505 F.2d 926, 928. The presumption, however, can be overcome by evidence that the judgment is the product of a nonadversary proceeding. In Lord v. Veazie, 8 How. 251, 49 U.S. 251, 255-256, 12 L.Ed. 1067, 1069 (1850), the Supreme Court refused to hear an appeal from a circuit court because

the plaintiff and defendant have the same interest, and that interest [is] adverse and in conflict with the interest of third persons, whose rights would be seriously affected if the question of law was decided in the manner that both parties to this suit desire it to be.
A judgment entered under such circumstances, and for such purposes, is a mere form. The whole proceeding was in contempt of the court, and highly reprehensible, and the learned district judge, who was then holding the Circuit Court, undoubtedly suffered the judgment pro forma to be entered under the impression that there was in fact a controversy between the plaintiff and defendant, and that they were proceeding to obtain a decision upon a disputed question of law, in which they had adverse interests. A judgment in form, thus procured, in the eye of the law is no judgment of the court.

See United States v. Johnson, 319 U.S. 302, 63 S.Ct. 1075, 87 L.Ed. 1413 (1943); Chicago & G. T. Ry. Co. v. Wellman, 143 U.S. 339, 12 S.Ct. 400, 36 L.Ed. 176 (1892); Chamberlain v. Cleveland, 66 U.S. 419, 17 L.Ed. 93 (1862); Waialua Agr. Co. v. Maneja, 9 Cir., 1949, 178 F.2d 603.

Federal courts have declined to follow nonadversary decisions of state courts as well as federal courts. In federal taxation cases the federal courts have not considered themselves bound by collusive state court judgments — “collusive in the sense that all the parties joined in a submission • of the issues and sought a decision which would adversely affect the Government’s right to additional income tax.” Freuler v. Helvering, 291 U.S. 35, 45, 54 S.Ct. 308, 312, 78 L.Ed. 634 (1934). See Stallworth’s Estate v. Commissioner of Internal Rev., 5 Cir., 1958, 260 F.2d 760, 763; Saulsbury v. United States, 5 Cir., 1952, 199 F.2d 578, 580; In re Estate of Abely, 1 Cir., 1974, 489 F.2d 1327, 1328; Pierpont v. C. I. R., 4 Cir., 1964, 336 F.2d 277, 281; Peyton’s Estate v. C. I. R., 8 Cir., 1963, 323 F.2d 438, 443-444; Faulkerson’s Estate v. United States, 7 Cir., 1962, 301 F.2d 231, 232; M. T. Straight’s Trust v. Commissioner of Internal Rev., 8 Cir., 1957, 245 F.2d 327, 329; Merchants National Bank & Trust Co. v. United States, 7 Cir., 1957, 246 F.2d 410, 418; In re Sweet’s Estate, 10 Cir., 1956, 234 F.2d 401, 404; Wolfsen v. Smyth, 9 Cir., 1955, 223 F.2d 111, 113-114. Cf. United States v. Farish, 5 Cir., 1966, 360 F.2d 595, 596; Flitcroft v. C. I. R., 9 Cir., 1964, 328 F.2d 449, 454; Darlington’s Estate v. C. I. R., 3 Cir., 1962, 302 F.2d 693, 694 — 695; Pitts v. Hamrick, 4 Cir., 1955, 228 F.2d 486, 491; .Gallagher v. Smith, 3 Cir., 1955, 223 F.2d 218, 224; Eisenmenger v. Commissioner of Internal Revenue, 8 Cir., 1944, 145 F.2d 103, 107; Nashville Trust Co. v. Com’r of Internal Revenue, 6 Cir., 1943, 136 F.2d 148, 150-151; Bullard v. Commissioner of Internal Revenue, 7 Cir., 1937, 90 F.2d 144, 147. See contra, C. I. R. v. Estate of Bosch, 2 Cir., 1966, 363 F.2d 1009.

In United States v. Harrison County, Mississippi, 5 Cir., 1968, 399 F.2d 485, we declined to give effect to a decision of the Mississippi Supreme Court concerning title to disputed lands, in part because the decision was in apparent conflict with the Mississippi Constitution. This Court stated, “We assume that this provision was not called to the attention of the Supreme Court of Mississippi, as it is not discussed in the opinion.” 399 F.2d at 491. If the absence of any discussion concerning an issue in a case is grounds for declining to follow a state court judgment, the lack of an adversary relationship between the parties is also grounds. See Gilmore v. Greene County Democratic Party Exec. Com., 5 Cir., 1966, 370 F.2d 919, 920; Meredith v. City of Winter Haven, 5 Cir., 1944, 141 F.2d 348, on remand from 320 U.S. 228, 64 S.Ct. 7, 88 L.Ed. 9 (1943).

Dade County points out that the Gilmore and Harris County cases were not diversity cases and are therefore inapplicable. The present case is not a simple diversity case either, being brought under 28 U.S.C. § 1331 (1971) (federal question jurisdiction) as well as section 1332. In any event, we believe that a federal court must insure that its judgments are based only on sound authority established through a truly adversary proceeding.

Respect for the integrity of the courts of the states requires that the federal courts exercise great caution in questioning the nonadversary nature of a state court proceeding. In the present case, however, the Deputy Attorney General of Florida admitted to the District Judge that the relationship between the state boards and Dade County was not an adversary one in the state court mandamus action. Under the circumstances, we are not obliged to follow the state court decision in favor of Dade County.

B. The Meaning of Aerojet’s Lease-Option Contract

1. Inapplicability of the Erie doctrine. Irrespective of the nonadversary nature of the state court proceeding, the meaning of the contract between Aerojet and the Trustees is not controlled by state law, because a violation of the Contract Clause has been alleged, and “the existence of the contract and the nature and extent of its obligation become federal questions . . .” Irving Trust Co. v. Day, 314 U.S. 556, 561, 62 S.Ct. 398, 401, 86 L.Ed. 452 (1942). See State v. Sims, 341 U.S. 22, 28-29, 71 S.Ct. 557, 560-561, 95 L.Ed. 713 (1951); Atlantic Coast Line R. Co. v. Phillips, 332 U.S. 168, 170, 67 S.Ct. 1584, 1585, 91 L.Ed. 1977 (1947); Higginbotham v. City of Baton Rouge, La., 306 U.S. 535, 538-539, 59 S.Ct. 705, 706, 83 L.Ed. 968 (1939); Coombes v. Getz, 285 U.S. 434, 441, 52 S.Ct. 435, 436, 76 L.Ed. 866 (1932); Larson v. State of South Dakota, 278 U.S. 429, 433, 49 S.Ct. 196, 197, 73 L.Ed. 441 (1929); Appleby v. City of New York, 271 U.S. 364, 379-380, 46 S.Ct. 569, 573, 70 L.Ed. 992 (1926); Cone v. Rorick, 5 Cir., 1940, 112 F.2d 894, 897; Florida Power & Light Co. v. City of Miami, 5 Cir., 1938, 98 F.2d 180, 181.

2. The terms of the agreement. Paragraph 8(a) of the lease-option contract between Aerojet and the Trustees describes in relevant part Aerojet’s option to purchase the disputed land:

Upon the election of Lessee [Aerojet], the total amount of the purchase price to be determined, as aforesaid, shall be paid to Lessor simultaneously with delivery to Lessee of a deed to said lands vesting good and merchantable fee simple title thereto in Lessee subject to applicable statutory rights and reservations in effect on date of conveyance.

(Emphasis added.)

Dade County contends that this clause reserved to the State of Florida the right to affect Aerojet’s contract rights by subsequent legislation. It is elementary contract law, however, that a contract should not be construed to yield absurd results:

If one interpretation would lead to an absurd conclusion, then such interpretation should be abandoned and the one adopted which would be in accord with reason and probability, [citations omitted] If the language of a contract is contradictory, obscure or ambiguous, or where its meaning is doubtful so that it is susceptible of two constructions, one of which makes it fair, customary, and such as a prudent man would naturally execute, while the other interpretation would make it unequitable, unnatural, or such as a reasonable man would not be likely to enter into, then the reasonable, logical and rational interpretation should be adopted.

Florida Power Corporation v. City of Tallahassee, 154 Fla. 638, 18 So.2d 671, 674 (1944); see Pritchard v. Norton, 106 U.S. 124, 137, 1 S.Ct. 102, 112, 27 L.Ed. 104 (1882) (“The parties [to a contract] cannot be presumed to have contemplated a law which would defeat their engagements.”); Insurance Company of North America v. Stevens, 5 Cir., 1970, 425 F.2d 704, 705; Connecticut General Life Insurance Company v. Craton, 5 Cir., 1968, 405 F.2d 41, 47-48; Motor Vehicle Casualty Co. v. Atlantic National Ins. Co., 5 Cir., 1967, 374 F.2d 601, 605. It would be unreasonable to hold that a party would give valuable consideration for an option to purchase which could be nullified at will by the state legislature.

A much sounder interpretation of clause 8 of the contract is that it refers to F.S.A. § 270.11 (1975), which provided for the reservation of certain interests in phosphate, minerals, metals, gas, and oil. In January 1962, Aerojet requested an interpretation of clause 8 of the lease agreement from the Attorney General of Florida. His reply states, “The statutory rights and reservations referred to in the subject portion of this lease with option to purchase are those contemplated in Section 270.11, Florida Statutes.”

C. Interpretation of F.S.A. § 253.111

1. Statutory construction. Ordinarily we would defer to a state court construction of a state statute. The only available state court construction of F.S.A. § 253.111, however, is the decision in the mandamus action brought by Dade County against the state boards. For the reasons discussed earlier, this nonadversary decision does not bind us in the present case.

The Florida Supreme Court focused on the introductory paragraph of F.S.A. § 253.111, which reads:

The board of trustees of the internal improvement trust fund of the state shall not sell or convey any land to which they hold title unless and until they shall afford an opportunity to the county in which such land is situated to receive such land for public purposes

Subparagraph (1) of the section, however, clearly states that the statutory obligation to offer the appropriate county any land the trustees shall sell arises prospectively only:

If an application is filed with the board requesting that they sell certain land to which they hold title and the board shall decide to sell such land or if the board shall, without such application, decide to sell such land the board shall, before consideration of any private offers, notify the board of county commissioners of the county in which such land is situated that such land is available to such county.

(Emphasis added.) In this case the state boards decided to sell the disputed land, by their lease-option agreement with Aerojet in 1961, long before F.S.A. § 253.111 was enacted. Thus they could not possibly have complied with the subsequently enacted provision of F.S.A. § 253.111. There is nothing to indicate that the Florida legislature intended this law to apply retroactively or to interfere with existing contracts.

2. The Contract Clause issue. Our belief in the correctness of our interpretation of F.S.A. § 253.111 is reinforced by the certainty that if the statute were construed to apply to Aerojet’s contract it would violate Article I, Section 10 of the United States Constitution, which declares that no state shall pass any “Law impairing the Obligation of Contracts.” See Wood v. Lovett, 313 U.S. 362, 369, 61 S.Ct. 983, 986, 85 L.Ed. 1404 (1941); Appleby v. City of New York, 271 U.S. 364, 382-397, 46 S.Ct. 569, 574-579, 70 L.Ed. 992 (1926); McGuire v. Sadler, 5 Cir., 1964, 337 F.2d 902, 905-906. Any other interpretation would clearly violate the Contract Clause and require us to hold the statute unconstitutional as applied in the circumstances here.

Affirmed.

RONEY, Circuit Judge

(specially concurring):

I concur in the result reached by Judge Ainsworth’s opinion and most of what it says. I have serious doubt as to the decision that the Trustees of the Internal Improvement Fund and Dade County were in such relationship as to make the first lawsuit res judicata as to Dade County. Concurring in the decision that F.S.A. § 253.111 cannot constitutionally prevent the relief granted to Aerojet in this case, however, makes my difference as to the res judicata effect of the first lawsuit of no consequence.

      . The same state officials are members of both boards: the Governor, Secretary of State, Attorney General, Comptroller, Treasurer, Commissioner of Agriculture, and Commissioner of Education. F.S.A. §§ 229.012, 253.02(1) (1975). These officials are referred to as “the state boards” in this opinion. Their authority is described in F.S.A. § 253.-02(6) (1975).

      . See Section III — B, infra.

      . 253.111 Notice to board of county commissioners before sale

      The board of trustees of the internal improvement trust fund of the state shall not sell or convey any land to which they hold title unless and until they shall afford an opportunity to the county in which such land is situated to receive such land for public purposes on the following terms and conditions:
      (1) If an application is filed with the board requesting that they sell certain land to which they hold title and the board shall decide to sell such land or if the board shall, without such application, decide to sell such land the board shall, before consideration of any private offers, notify the board of county commissioners of the county in which such land is situated that such land is available to such county. Such notification shall be given by registered mail, return receipt requested.
      (2) The board of county commissioners of the county in which such land is situated shall, within ninety days after receipt of such notification from the board, determine by resolution whether or not it proposes to devote such land to public parks, public beaches, public fishing piers, public boat ramps, public dockage facilities or other public outdoor recreational purposes, hereinafter referred to generally as public outdoor recreational purposes.

      . See Section II--B-1, infra.

      . Responsibility for raising the constitutional issue — whether F.S.A. § 253.111 violates the Contract Clause — clearly lay with the defendant Trustees in the first federal case, rather than with Aerojet. Indeed Aerojet could not have raised the issue. The Florida statute was a potential defense of the Trustees to the specific performance action and could not have been pleaded in Aerojet’s complaint. See Louisville & N. R. Co. v. Mottiey, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908).

      . The very purpose of federal diversity jurisdiction is to avoid bias against parties from outside the forum state. Guaranty Trust Co. of New York v. York, 326 U.S. 99, at 111, 65 S.Ct. 1464, at 1471, 89 L.Ed. 2079 (1945); Erie R. Co. v. Tompkins, 304 U.S. 64, at 74, 58 S.Ct. 817, at 820, 82 L.Ed. 1188 (1938); Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 347, 4 L.Ed. 97, 108 (1816); The Bank of the United States v. Deveaux, 9 U.S. (5 Cr.) 61, 87, 3 L.Ed. 38, 45 (1809). To permit Dade County to nullify a prior federal court judgment rendered in favor of Aerojet, an out-of-state party, through subsequent state court action would fly in the face of that purpose.

      . The District Court apparently believed that, under Erie, state law governed the question whether the prior federal court judgment was res judicata. It concluded nevertheless that the mandamus granted by the Florida Supreme Court need not be followed because it was based on a nonadversary proceeding. See Section III-A, infra.

      . See In re Air Crash Disaster, Dayton, Ohio, On March 9, 1967, S.D.Ohio, 1972, 350 F.Supp. 757, 762 — 764; Hassenplug v. Victor Lynn Lines, E.D.Pa., 1947, 71 F.Supp. 70, affd 3 Cir., 1947, 163 F.2d 828; Moore’s Federal Practice 11 0.316 [6]. Contra Blum v. William Goldman Theaters, 3 Cir., 1949, 174 F.2d 914; Hartmann v. Time, 3 Cir., 1948, 166 F.2d 127. Despite occasional dicta suggesting that state law may govern res judicata in diversity cases, the only cases that have so held are Blum and Hartmann, supra. See Murphy v. Landsburg, 3 Cir., 1973, 490 F.2d 319, 322 n. 4; Provident Tradesmens B & T Co. v. Lumbermens Mut. Cas. Co., 3 Cir., 1969, 411 F.2d 88, 94; Kimmel v. Yankee Lines, 3 Cir., 1955, 224 F.2d 644. Those cases contain virtually no discussion of the choice of law problem, and we decline to follow them. Cf. 19 A.L.R. Fed. 709.
      The Fourth Circuit has taken the same approach to federal-state choice of law problems as expressed by the Second Circuit in Kern. Atkins v. Schmutz Manufacturing Company, 4 Cir., 1970, 435 F.2d 527, presented the question whether state or federal law controlled whether the filing of one diversity action tolled the applicable statute of limitations as to another diversity action filed in a different District Court. In holding that federal law applies, Judge Haynsworth wrote:
      It is, of course, neither possible nor necessary for federal courts to be totally neutral in the adjudication of state-created rights. It is not possible simply because federal courts are not protean and are unable to transform themselves into exact replicas of their state counterparts. That state and federal judicial systems are not identic will inevitably mean that the choice of forum will have some effect upon the course of litigation. Some adoption of state court procedures by federal courts sitting in diversity may be feasible, but it may also be in conflict with fundamental interests of the federal courts in the conduct of their own business and the maintenance of the integrity of their own procedures, the legitimate interests of a federal forum, qua forum.
      435 F.2d at 536.
      Breeland v. Security Insurance Co. of New Haven, Conn., 5 Cir., 1969, 421 F.2d 918, cited by the County, and Berner v. British Commonwealth Pacific Airlines, Ltd., 2 Cir., 1965, 346 F.2d 532, are inapposite. Those cases concerned collateral estoppel — in Breeland the collateral effect of a criminal conviction— rather than res judicata. See James Talcott, Inc. v. Allahabad Bank, Ltd., 5 Cir., 1971, 444 F.2d 451, 461 & n. 9; Seguros Tepeyac, S. A., Compañía Mexicana v. Jernigan, 5 Cir., 1969, 410 F.2d 718, 725-728; St. Paul Fire and Marine Insurance Company v. Lack, 4 Cir., 1973, 476 F.2d 583, 585-586; Ritchie v. Landau, 2 Cir., 1973, 475 F.2d 151, 154; Greenberg v. Mobil Oil Corporation, N.D.Tex., 1970, 318 F.Supp. 1025, 1032. Moreover in Berner the court found plausible rationales for applying state or federal law, but did not reach the issue in rendering its decision. The application of state law on collateral estoppel cannot nullify a federal court judgment. That doctrine affects only the ancillary consequences of such judgments.

      . As we noted earlier, see footnote 6 supra, avoiding state court bias is a major purpose of diversity jurisdiction and an important reason for applying federal' law to determine whether a prior federal court diversity judgment is res judicata in a subsequent diversity case. It should be noted that our holding accomplishes that purpose without intruding into the legitimate domain of state law under the Erie doctrine. Where a federal court judgment based on diversity jurisdiction is pleaded as res judicata in state court, the danger of state court bias causing untoward effects on the integrity of federal éourt judgments is minimal. If bias were a problem one party or the other would have filed the suit in federal court or removed it there. Accordingly, state law has been held to govern whether a federal court diversity judgment is res judicata in a subsequent state court action. See Dupasseur v. Rochereau, 88 U.S. (21 Wall.) 130, 22 L.Ed. 588 (1875); Crescent City, Etc., Co. v. Butchers’ Union, Etc., Co., 120 U.S. 141, 7 S.Ct. 472, 30 L.Ed. 614 (1887). Where a state court judgment is pleaded as res judicata in a subsequent federal court diversity action, applying state law is also appropriate. There is little chance of bias against any of the parties or their privies, since the first case has gone to judgment in a state court, rather than being brought in, or removed to, federal court. The federal courts have uniformly applied state law under these circumstances. See Angel v. Bullington, 330 U.S. 183, 67 S.Ct. 657, 91 L.Ed. 832 (1947); Oklahoma Packing Co. v. Oklahoma Gas & Electric Co., 309 U.S. 4, 8, 60 S.Ct. 215, 217, 84 L.Ed. 447 (1940); Wright v. Georgia R. & B. Co., 216 U.S. 420, 429, 30 S.Ct. 242, 245, 54 L.Ed. 544 (1910); Lynn Carol Fashions, Inc. v. Cranston Print Works Co., 3 Cir., 1972, 453 F.2d 1177, 1182-1184; Anderson v. Moorer, 5 Cir., 1967, 372 F.2d 747, 751-752; Graves v. Associated Transport, Inc., 4 Cir., 1965, 344 F.2d 894, 896; Gedeon v. State Farm Mutual Automobile Insurance Co., 3 Cir., 1965, 342 F.2d 15, 17; Gramm v. Lincoln, 9 Cir., 1958, 257 F.2d 250, 255 n. 6; Standard Acc. Ins. Co. v. Doiron, 1 Cir., 1948, 170 F.2d 206, 208. Cf. Thomas v. Consolidation Coal Company, 4 Cir., 1967, 380 F.2d 69, 79 (federal law applies to determine whether a prior state court judgment is res judicata in a federal court suit under 29 U.S.C. § 185(a) [LMRDA]).

      . Except for the decision of the Florida Supreme Court in the mandamus suit brought by Dade County against the Trustees, the Florida law of res judicata on the scope of the cause of action and the doctrine of virtual representation is the same as the federal law. See Hinchee v. Fisher, Fla., 1957, 93 So.2d 351, 353; Gordon v. Gordon, Fla., 1952, 59 So.2d 40, 43-44; Wolfson v. Rubin, Fla., 1951, 52 So.2d 344, 346; Young v. Miami Beach Improvement Co., Fla., 1950, 46 So.2d 26, 30; Lockhart v. Dade County, Fla., 1946, 25 So.2d 646, 647 (scope of cause of action); City of New Port Richey v. State, Fla., 1962, 145 So.2d 903, 905-906; Young v. Miami Beach Improvement Co., supra, 46 So.2d at 30; Sauls v. Freeman, Fla., 1888, 24 Fla. 209, 4 So. 525 (identity of parties). Though the District Court should have applied federal law, there is no need to remand. The state court mandamus decision and our reasons for not following it are discussed fully in section III, infra.

      . The federal courts are not free to disregard a state court judgment simply because both parties have consented to its entry. “[I]t is not necessary that the adjudication be the result of a contest in which one party says yes and another no.” Darlington’s Estate v. C. I. R., supra, 302 F.2d at 695. Consent decrees are entitled to the same respect accorded any judgment, so long as the parties’ interests being compromised and reconciled in the decree are truly adverse.

      . The following colloquy occurred during the District Court’s hearing on Aerojet’s motion for summary judgment:
      THE COURT:
      The facts in this case just don’t bear out your statement. I will agree with you that as far as a decision of this Court is concerned what went on between the Attorney General’s Office, the Attorney General of Florida and Dade County has nothing whatsoever to do with this case, but don’t attempt to make me think that there weren’t some shuffling and finagling going on between Dade County and the Attorney General’s office. That is impossible for me to fathom.
      MR. RICHARD [Counsel for defendants]:
      Your Honor, I would never attempt to tell you that — [.]

      . Aaron v. Florida Gas Transmission Company, 5 Cir., 1969, 412 F.2d 802, and Blanton v. Moody, 5 Cir., 1959, 265 F.2d 533, relied on by Dade County, are inapposite. No Contract Clause claim was raised in these cases.

      . 270.11 Contracts for sale of public lands to reserve certain mineral rights in state.

      In all contracts and deeds for the sale of land executed by the board of trustees of the internal improvement trust fund, there shall be reserved for the board of trustees and its successors an undivided three fourths interest in, and title in and to, an undivided three fourths interest in all the phosphate, minerals and metals that are or may be in, on, or under the said land and an undivided one half interest in all the petroleum that is or may be in, on, or under said land with the privilege to mine and develop the same. The said board of trustees may in its discretion sell or release said reserved interest in or as to any particular parcel of land when such parcel has a building thereon or on which a building is proposed to be erected, and the state board of education may sell or release any such interest which was reserved for said board pursuant to this section prior to September 1, 1967. Such sale or release shall be made on application of the owner of the title to the particular parcel of land with statement of reason justifying such sale or release.