Vines v. University of Louisiana

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
January 28, 2005
FIFTH CIRCUIT
Charles R. Fulbruge III
____________ Clerk
No. 03-31172
____________

DWIGHT VINES; VAN MCGRAW,

Plaintiffs-Appellees,

versus

UNIVERSITY OF LOUISIANA AT MONROE; BOARD OF
SUPERVISORS OF THE UNIVERSITY OF LOUISIANA
SYSTEM,

Defendants-Appellants.

Appeal from the United States District Court
for the Western District of Louisiana

Before KING, Chief Judge, and SMITH and GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

The University of Louisiana at Monroe1 and the Board of Trustees, University of Louisiana

System (hereinafter co llectively “ULM”) appeal the district court’s denial of their motion for

permanent injunction under the “relitigation exception” to the Anti-Injunction Act claiming that the

1
Northeast Louisiana University changed its name to the University of Louisiana at Monroe
in 1999.

1
doctrines of res judicata and collateral estoppel preclude Dwight Vines’ and Van McGraw’s age

discrimination suit filed in state court. We find that all of the elements of ULM’s collateral estoppel

claim have been satisfied and that the instant case falls within the relitigation exception to the Anti-

Injunction Act. We therefore REVERSE and REMAND to the district court to enter an injunction

preventing Vines and McGraw from proceeding with their state age discrimination claims against

ULM.

I

Vines and McGraw are former administrators and faculty members of ULM. After serving

a sufficient number of years to qualify for retirement benefits under the Teachers’ Retirement System

of Louisiana (“TRSL”), Vines voluntarily elected to retire in 1991 and McGraw elected to retire in

1989. Pursuant to the TRSL, they each received retirement benefits for life and one-hundred percent

of their average compensation during their previous three years. Vines and McGraw were

simultaneously rehired on a year-to-year basis and each worked for five years, receiving retirement

benefits in addition to a salary for wo rk performed. In January 1996, the University of Louisiana

System adopted a policy prohibiting the re-employment of retirees on a regular full-time basis and

Vines and McGraw were notified that they would not be rehired for the 1996-97 academic year.

Vines and McGraw filed identical suits in federal and state court, claiming ULM violated the

federal Age Discrimination in Employment Act (“ADEA”) (29 U.S.C. § 621 (2004) et. seq.) and

Louisiana Employment Discrimination Law (“LAEDL”) (LA. REV. STAT. ANN. § 23:301 (2004) et.

seq.) by prohibiting re-employment of retirees, paying the plaintiffs less than younger professors, and

increasing their workloads. ULM removed the state court suit under federal question jurisdiction and

the cases were consolidated. The Equal Employment Opportunity Commission (“EEOC”) then

2
instituted a separate action in federal court, naming Vines and McGraw as aggrieved parties, alleging

violations of the ADEA by ULM. The EEOC action was also consolidated with Vines’ and

McGraw’s cases.

ULM filed a motion for summary judgment seeking dismissal of all the remaining ADEA

claims based upon Kimel v. Florida Board of Regents, 528 U.S. 62 (2000). The district court

concluded that it lacked jurisdiction over Vines’ and McGraw’s ADEA claims, but that the EEOC

was not barred from asserting those claims on their behalf. Vines’ and McGraw’s state law claims

were remanded to state court. The district court then granted ULM’s motion for summary judgment

dismissing the EEOC lawsuit, finding that ULM’s policy did not violate the ADEA. The EEOC

sought to appeal the judgment, but then voluntarily dismissed the appeal.

ULM filed a peremptory exception of res judicata/collateral estoppel in the present case in

state court, arguing that Vines and McGraw asserted the same claims and issues previously litigated

and decided adversely to them in federal court. The Louisiana trial court granted the exception,

dismissing the state claims with prejudice after finding that the federal principles of res judicata

applied to bar the suit. The court noted that the federal court decision was rendered by a court of

competent jurisdiction, the decision was final and on the merits, the EEOC and the plaintiffs were in

privity, and the causes of action arose from the same nucleus of operative facts. The Second Circuit

Court of Appeal in Louisiana reversed the trial court judgment, which had granted an exception of

res judicata in favor of ULM, and reinstated the state court action, concluding that privity did not

exist between Vines and McGraw and the EEOC. Vines v. Northeast La. Univ., 839 So.2d 979, 987

(La.App. 2 Cir. 3/5/03). ULM’s request for en banc rehearing in the Second Circuit and their

application for writ to the Louisiana Supreme Court were denied. Vines v. Northeast La. Univ., 853

3
So.2d 638, 638 (La. 9/19/03).

ULM filed a motion under the “relitigation exception” of the Anti-Injunction Act with the

Western District of Louisiana seeking to enjoin Vines and McGraw’s lawsuit in state court based on

the federal court’s decision in favor of ULM against the EEOC. The district court denied the

permanent injunction and ULM appealed to this court.

II

We generally review a district court’s denial of a motion for a permanent injunction for abuse

of discretion. See St. Paul Mercury Ins. Co. v. Williamson, 332 F.3d 304, 308 (5th Cir. 2003). The

application of the relitigation exception to the Anti-Injunction Act, however, is a question of law and

therefore we review the district court’s denial of ULM’s motion for a permanent injunction de novo.

Id.

The Anti-Injunction Act generally prohibits federal courts from interfering with proceedings

in state court. 28 U.S.C. § 2283 (2004). There are only three specific circumstances in which a

federal court can enjoin a state court proceeding, when it is: (1) expressly authorized by a federal

statute; (2) necessary to assert jurisdiction; or (3) necessary to protect or effectuate a prior judgment

by a federal court. Id.; St. Paul Mercury Ins. Co., 332 F.3d at 308-09. The third exception is

referred to as the “relitigation” exception. “The relitigation exception was designed to permit a

federal court to prevent state litigation of an issue that previously was presented to and decided by

the federal court. It is founded in the well-recognized concepts of res judicata and collateral

estoppel.” Chick Kam Choo v. Exxon Corp., 486 U.S. 140, 147 (1988).

There are two related doctrines of preclusion: (1) claim preclusion, commonly referred to as

res judicata, and (2) issue preclusion, known as collateral estoppel. See Montana v. United States,

4
440 U.S. 147, 153 (1979). In order to determine if the relitigation exception to the Anti-Injunction

Act is applicable to preclude litigation of a claim in state court under the doctrine of res judicata, this

court applies a four-part test. “First, the parties in a later action must be identical to (or at least in

privity with) the parties in a prior action. Second, the judgment in the prior action must have been

rendered by a court of competent jurisdiction. Third, the prior action must have concluded with a

final judgment on the merits. Fourth, the same claim or cause of action must be involved in both

suits.” N.Y. Life Ins. Co. v. Gillispie, 203 F.3d 384, 387 (5th Cir. 2000) (quoting United States v.

Shanbaum, 10 F.3d 305, 310 (5th Cir. 1994)). The doctrine of collateral estoppel applies to prevent

issues of ultimate fact from being relitigated between the same parties in a future lawsuit if those

issues have once been determined by a valid and final judgment. Ashe v. Swenson, 397 U.S. 436, 443

(1970); RESTATEMENT (SECOND) OF JUDGMENTS § 27 (1982) (“When an issue of fact or law is

actually litigated and determined by a valid and final judgment, and the determination is essential to

the judgment, the determination is conclusive in a subsequent action between parties, whether on the

same or a different claim.”) (cited in Grogan v. Garner, 498 U.S. 279, 284 (1991)). While complete

identity of all parties is not required, the party against whom the collateral estoppel would be applied

generally must either have been a party, or privy to a party, in the prior litigation. See Terrell v.

DeConna., 877 F.2d 1267, 1270 (5th Cir. 1989).

Vines and McGraw concede that there was a judgment by a court of competent jurisdiction

in the ADEA claim brought by the EEOC and that it was a final judgment on the merits.

III

The issue this court must decide initially is whether, even if the state court mistakenly rejected

ULM’s res judicata claim, a federal court injunction is permitted against enforcement of the state

5
court judgment. The Supreme Court has stated that “[o]nce the state court has finally rejected a

claim of res judicata, then the Full Faith and Credit Act becomes applicable and federal courts must

turn to state law to determine the preclusive effect of the state court’s decision.” Parsons Steel, Inc.

v. First Ala. Bank, 474 U.S. 518, 524 (1986) (emphasis added). The Full Faith and Credit Act

requires federal courts as well as state courts to give state judicial proceedings “the same full faith

and credit in every court within the United States and its Territories and Possessions as they have by

law or usage in the courts of such State, Territory or Possession from which they are taken.” 28

U.S.C. § 1738 (2004).

This court must determine whether the Louisiana state court decision, that the prior federal

adjudication of the EEOC’s claims does not bar the state court proceedings, would be given

preclusive effect under Louisiana law and therefore be entitled to full faith and credit. See Migra v.

Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 (1984). Under Louisiana law, in order for a

judgment to be entitled to preclusive effect it must be a final judgment. LA. REV. STAT. ANN. §

13:4231 (2004). Louisiana law distinguishes between interlocutory judgments and final judgments.

“A judgment that does not determine the merits but only preliminary matters in the course of an

action is an interlocutory judgment.” LA. CODE CIV. PROC. ANN. art. 1841 (2004). On the other

hand, “[a] judgment that determines the merits in whole or in part is a final judgment.” Id.

The state trial court in this case granted ULM’s peremptory exception of res judicata, but the

Louisiana Second Circuit Court of Appeal overruled the trial court’s decision and remanded the case

for a trial on the merits. Under Louisiana law, t he overruling of a peremptory exception is an

interlocutory judgment and thus not entitled to preclusive effect. See Marsh Eng’g, Inc. v. Parker,

680 So.2d 637, 638 (La. 09/27/96); Bellard v. Biddle, 834 So.2d 1238, 1241 (La. App. 3 Cir.

6
12/30/02). The Louisiana Supreme Court’s denial of ULM’s writ also did not decide the merits of

the res judicata issue, but only allowed the interlocutory ruling to stand pending further review at a

later stage of the proceeding. Id. Therefore, because the state courts’ rulings on the res judicata

issue were interlocutory and not final, a federal court may enjoin Vines and McGraw from relitigating,

through a state court action, issues already decided against them in federal court.

IV

The district court concluded that Vines and McGraw could proceed with their Louisiana age

discrimination suit, holding that they were not bound by the federal court decision because they were

not a party in that suit nor was there privity between the EEOC and the individual plaintiffs. The

district court adopted the magistrate judge’s report and recommendation which accepted the ruling

of the Louisiana Second Circuit Court of Appeals. Vines, 839 So.2d 979. The Loui siana court

reasoned that because Vines and McGraw were denied an opportunity to assert their state claims in

federal court, they maintained the right to sue under the state statutory scheme since the EEOC had

no standing to prosecute such claims under Louisiana law. Id. at 987. The opinion also noted that

the EEOC action was not prosecuted solely for the individual benefits of Vines and McGraw, but

rather for the general public interest. Id. Finally, the state court held that Vines and McGraw had

no control over the conduct of the suit prosecuted by the EEOC. Id.

Whether the district court may file an injunction under the Anti-Injunction Act hinges on

whether the EEOC was in privity with Vines and McGraw. Privity is a “legal conclusion that the

relationship between the one who is a party on the record and the non-party is sufficiently close to

afford application of the principle of preclusion.” Southwest Airlines Co. v. Tex. Int’l Airlines, 546

F.2d 84, 95 (5th Cir. 1977). Federal courts have consistently held that a non-party to an action is still

7
bound by and entitled to the benefits of a judgment as though it were a party if it was represented in

the original action. See Meza v. Gen. Battery Corp., 908 F.2d 1262, 1266-67 (5th Cir. 1990). It is

well-settled precedent that a judgment in an action in which a government agency represents private

individuals is binding on those individuals. See Heckman v. United States, 224 U.S. 413, 445-46

(1912). The EEOC is an agency expressly invested by law with the authority to represent the

interests of individuals in civil actions against employers to recover damages for discriminatory

practices. 42 U.S.C. § 2000e-5 (2004). We conclude that the EEOC did represent Vines and

McGraw for res judicata and collateral estoppel purposes in the federal case brought against ULM.

In Jones v. Bell Helicopter Co., this court considered the issue of “whether an individual may

bring a private Title VII action, based on the same claim at issue in an earlier action brought by the

[EEOC], when the Commission’s act ion is set aside for failure to comply with the Administrative

Procedure Act.”2 614 F.2d 1389, 1389 (5th Cir. 1980). This court held that despite the EEOC’s

“ineptitude, sloth, and indifference” in failing to promptly pursue legal action on his behalf, res

judicata barred the individual from pursuing the same claim because privity existed between him and

the EEOC. Id. at 1391. This decision, however, preceded the Supreme Court’s decision in General

Telephone. Co. of the Northwest, Inc. v. EEOC which discussed how the interests of the EEOC and

of the individual may be divergent. 446 U.S. 318, 326 (1980); see also Riddle v. Cerro Wire and

Cable Group, Inc., 902 F.2d 918, 923 (11th Cir. 1990). Also, unlike Jones, this is an ADEA claim

and not a Title VII case. The distinctive enforcement scheme of the ADEA terminates the right of

an individual to pursue an action once the EEOC commences an action to enforce the employee’s

2
The district court found that the EEOC had delayed its determination of cause and the
issuance of the conciliation letters for 5-7 years in violation of the Administrative Procedure Act.

8
rights under the statute, whereas the enforcement scheme of Title VII does not terminate the rights

of the employee once the EEOC brings a suit. 29 U.S.C. 626(c)(1) (“the right of any person to bring

such action shall terminate upon the commencement of an action by the [EEOC] to enforce the right

of such employee under [the ADEA]”). Therefore, the EEOC is not always to be considered the

representative of individuals on whose behalf it brings an ADEA action. For example, the EEOC’s

role differs when it seeks to enjoin discrimination against an entire class or attempts to protect a

broader interest than simply that of the individual plaintiff. In a situation where there is a clear

divergence of interests between the EEOC and the aggrieved individual, we must determine in each

case whether privity exists. This is not the situation in the present case and we express no view

regarding the question of whether the doctrine of representative claim preclusion would apply in such

a case.

In the present case, it is clear that the EEOC’s interest did not diverge from that of Vines and

McGraw. When the EEOC seeks private benefits for individuals under the ADEA, it takes on

representative responsibilities that places it in privity with those individuals. Although this court has

not addressed this specific issue, several other circuit s have reached this conclusion. The Third

Circuit held that the “ADEA’s distinctive enforcement scheme gives the EEOC representative

responsibilities when it seeks private benefits for an individual and that the doctrine of representative

claim preclusion must therefore be applied.” EEOC v. U.S. Steel Corp., 921 F.2d 489, 495 (3d Cir.

1990). In U.S. Steel Corp. the EEOC filed a complaint alleging that the United States Steel

Corporation had violated the ADEA because employees were required to sign waivers as a condition

for obtaining more favorable retirement benefits. Several employees had been unsuccessful with their

individual suits on the same claim. The district court granted relief in the EEOC’s case, including a

9
permanent injunction against requiring the release. The district court also determined that the earlier

judgments against the individuals did not preclude retroactive relief. The Third Circuit focused on

the “distinctive scheme” of the ADEA in reversing the district court, reasoning that the ADEA

intended for the EEOC to act as the representative for individual employees when it sought to recover

individual benefits for them, which is demonstrated by the fact that the individual’s right to sue is cut

off once the EEOC begins an action. Id.; 29 U.S.C. § 626(c)(1). The court viewed “the provision

of the ADEA prohibiting private suits once the EEOC files its complaint as essentially a codification

of the doctrine of representative claim preclusion with respect to those instances in which the EEOC

litigates first: litigation by the representative party (the EEOC) seeking private relief for an individual

precludes subsequent litigation of the same claim by an individual for whom the representative sought

relief.” U.S. Steel Corp., 921 F.2d at 495.

Several other courts have followed the reasoning of the Third Circuit in U.S. Steel Corp.,

recognizing that the ADEA places the EEOC in privity with individuals for whom it seeks relief such

that a lawsuit litigated by either the EEOC or the individual bars subsequent relitigation of the same

claims or issues. The Seventh Circuit held that the EEOC was barred from recovering back pay or

liquidated damages on behalf of an individual who had previously litigated the same claim without

success, stating that they “agree[d], generally, with the Third Circuit’s position that there is privity

between the EEOC and individuals for whom it seeks individual benefits.” EEOC v. Harris Chernin,

Inc., 10 F.3d 1286, 1291 (7th Cir. 1993). The Second Circuit also concluded that the statutory

enforcement mechanism of the ADEA “gives the EEOC representative responsibilities when it seeks

private benefits for an individual.” EEOC v. Kidder, Peabody & Co., 156 F.3d 298, 302 (2nd Cir.

1998) (quoting U.S. Steel Corp., 921 F.2d at 495), overruled on other grounds, EEOC v. Waffle

10
House, Inc., 534 U.S. 279 (2002). Several district courts have also considered the issue and have

reached the same conclusion. See EEOC v. TIC-The Indus. Co., et al., No. 01-1776, 2002 U.S.

Dist. LEXIS 22728, at *8 (E.D. La. Nov. 21, 2002) (“the concl usion that the EEOC is the

individual’s representative in ADEA suits. . .seems inescapable.”); Mohammed v. May Dep’t Stores,

273 F.Supp.2d 531, 535 (D. Del. 2003); EEOC v. Luce, Forward, Hamilton & Scripps, 122

F.Supp.2d 1080, 1087-88 (C.D. Cal. 2000); EEOC v. Nebco Evans Distrib. Inc., No. 8:CV96-

00644, 1997 U.S. Dist. LEXIS 23111, at *11-12 (D. Neb. June 5, 1997).

The Second Circuit Court of Appeal in Louisiana relied almost entirely on the California state

appellate court’s decision in Victa v. Merle Norman Cosmetics, Inc. in holding that privity did not

exist between the EEOC and Vines and McGraw. 19 Cal.App.4th 454 (1993). In Victa, the state

court determined that an action in federal court brought by the EEOC under the ADEA claiming age

discrimination did not serve as a res judicata bar to the individual plaintiff’s state law age

discrimination suit in state court. The individual plaintiff proceeded with her state court claim after

the EEOC and the defendant in the federal suit agreed upon a stipulated judgment that included only

injunctive relief. The court noted that “[a]lthough the complaint stated that the EEOC was bringing

the case both to correct unlawful employment practices [of the defendant] and to make plaintiff

whole, by the time it agreed to the judgment the EEOC had dispensed with plaintiff’s particular

interest, and was content to dismiss the case in exchange for [defendant’s] submission to a general

injunction. Surely, in obtaining the judgment here urged as res judicata the EEOC did not act as

plaintiff’s representative.” Id. at 468.

The EEOC plays a dual role under the enforcement scheme of the ADEA, both protecting the

public interest and vindicating specific private claims by seeking individual relief on their behalf. See

11
Gen. Tel. Co. of the Northwest, 446 U.S. at 331; U.S. Steel Corp., 921 F.2d at 496. The

responsibilities of each of these roles, however, does not necessarily conflict. Unlike in Victa, the

EEOC in this case never abandoned the interests of the individual plaintiffs. The EEOC acted as

Vines’ and McGraw’s representative in seeking monetary, “make-whole” relief in the federal case,

the same relief they now seek in their state court action.3

The district court and the Louisiana Second Circuit reasoned that by expanding the class of

victims in the suit to include others similarly situated with the plaintiffs, the EEOC was no longer

prosecuting the action solely for Vines and McGraw, but in effect representing the general public.

Therefore, the court concluded that privity did not exist because the EEOC sought to enjoin

discrimination against a class of victims, not just the plaintiffs. The Louisiana court, however, failed

to explain how any conflict of interest was created by the EEOC expanding the class of victims or by

also seeking injunctive relief. Unlike in Victa, the EEOC did not seek as its sole relief a general

injunction. The EEOC continued to pursue monetary, “make-whole” relief for Vines and McGraw,

in addition to an injunction against ULM’s practices.

The district court’s contention that the absence of control by Vines and McGraw over the

conduct of the suit by the EEOC prevented the suit from operating as a bar to their state court claims

must also be rejected. “The absence of any formal designation of the individual claimants as parties

. . . does not change the nature of the EEOC’s role as the individuals’ representative and should not

change the effect of the doctrine of claim preclusion. By claiming or accepting individual relief won

by the EEOC, the individual would necessarily concede that the EEOC was their representative and

3
In its complaint, the EEOC sought “make-whole” relief for Vines and McGraw, including
“backpay, frontpay, with prejudgment interest,. . .with general compensatory damages.” R. Vol. 15
at p. 7.

12
that they were embraced by the EEOC’s judgment.” U.S. Steel Corp., 921 F.2d at 496. Vines and

McGraw were named in the EEOC suit and there is no question that had the EEOC won its claim

against ULM that they would have accepted the individual relief. Therefore, even if it is conceded

that Vines and McGraw did not have any control over the federal suit, it does not affect the preclusive

effects of the decision on their current state suit.

Vines and McGraw attempt to distinguish this case from the decisions in U.S. Steel Corp. and

the other courts which have considered the issue by arguing that the sequence in which the duplicative

lawsuits are filed or resolved determines whether privity applies. The doctrine of representative claim

preclusion, however, applies equally regardless of the order of litigation. U.S. Steel Corp., 921 F.2d

at 493.

V

Res judicata requires that the same claim or cause of action be involved in both proceedings

and the doctrine of collateral estoppel requires that the same issue of fact or law be actually litigated

and determined in a prior judgment. N.Y. Life Ins. Co., 203 F.3d at 387; Ashe, 397 U.S. at 443.

Federal law of res judicata “bars all claims that were or could have been advanced in support of the

causes of action on the occasion of its former adjudication, not merely those that were adjudicated.”

Nilsen v. City of Moss Point, 701 F.2d 556, 560 (5th Cir. 1983) (emphasis omitted). Federal courts

“use a transactional test to determine whether two claims involve the same cause of action, under

which the critical question is ‘not the relief requested or the theory asserted but whether the plaintiff

bases the two actions on the same nucleus of operative facts.’” N.Y. Life Ins. Co., 203 F.3d at 387

(quoting Agrilectric Power Partners v. Gen. Elec. Co., 20 F.3d 663, 665 (5th Cir. 1994)).

“Collateral estoppel does not preclude litigation of an issue unless both the facts and the legal

13
standard used to assess them are the same in both proceedings.” Copeland v. Merrill Lynch & Co.,

Inc., 47 F.3d 1415, 1422 (5th Cir. 1995).

The state claims brought by Vines and McGraw and the federal suit brought by the EEOC are

both age discrimination suits.4 Each complaint alleged that ULM maintained a policy of paying state

retirees lower wages and assigned them greater workloads than those who were not state retirees.5

The state claim was brought under the Louisiana Employment Discrimination Law (“LAEDL”)6 and

the federal suit was brought under the ADEA. The two statutes are substantively similar and federal

and state courts routinely follow cases interpreting the ADEA when evaluating claims brought under

the LAEDL, recognizing the same burden of proof and defenses. See Hypes v. First Commerce

Corp., 134 F.3d 721, 726 (5th Cir. 1998); Deloach v. Delchamps, Inc., 897 F.2d 815, 818 (5th Cir.

1990); Montgomery v. Lobman, Carnahan, Batt & Angelle, 729 So.2d 1075, 1077 (La.App. 4 Cir.

1999).

Both the federal suit brought by the EEOC and the state court suit brought by Vines and

4
The EEOC complaint stated: “The Board’s policy openly discriminates against employees
on the basis of age.” Vines and McGraw’s complaint stated: “The Defendant Board discriminated
against the plaintiffs’ on the basis of their age. . .”
5
The EEOC complaint stated: “The University admittedly paid Vines and McGraw less than
non-retirees because of their retired status. The University assigned heavier workloads to retired non-
tenure-track professors than to non-retired (younger) non-tenure track professors.” Vines and
McGraw’s complaint similarly alleged: “During their tenure with [ULM] following their retirement
through the TRSL, the Defendant [ULM] assigned them additional courses to teach than younger
professors and paid them less salary than their younger counterparts. [ULM] violated the ADEA and
[LAEDL] with these practices.”
6
Vines and McGraw filed their lawsuits under LA. REV. STAT. ANN. §§ 23:971 et seq. and
51:2232 et seq. After the filing of their lawsuits, the Louisiana Legislature amended the statutes and
combined the antidiscrimination laws into one statute, LA. REV. STAT. ANN. § 23:301 et. seq, entitled
the Louisiana Employment Discrimination Law.

14
McGraw involve claims that arise out of precisely the same set of facts7, raise the same issues

(including whether ULM discriminated against the individual plaintiffs in their pay, workloads and

non-renewal of their contracts because of age), and seek monetary relief for Vines and McGraw.8

The language in the complaints demonstrates the similarity between the two suits. The district court

judge in the federal suit recognized that the claims involved the same facts and issues and

consolidated Vines’ and McGraw’s state claims with the EEOC action.9

The district court ultimately held that ULM had “legitimate nondiscriminatory reasons for

paying lower salaries to and not renewing the contracts of Vines and McGraw” and that the “EEOC

ha[d] not produced sufficient evidence to show that the reasons were pretext for age discrimination.”

Collateral estoppel applies to preclude Vines and McGraw from relitigating these issues in their state

court age discrimination action because they involve the same issues of ultimate fact that have been

determined by a valid and final prior judgment.10

7
The facts at issue in each suit, discussed supra, are not disputed by either party.
8
The EEOC’s complaint requested as relief that the court: “make whole [Vines and
McGraw]. . .by providing appropriate backpay with prejudgment interest, in amounts to be
determined at trial, and other affirmative relief necessary to eradicate the effects of [ULM’s] unlawful
employment practices. Order [ULM] to make whole [Vines and McGraw]. . .by paying liquidated
damages in an amount equal to back wages, plus prejudgment interest. . .” Vines and McGraw’s
complaint requested as relief: “general compensatory damages for pain and suffering and mental
anguish and distress, for liquidated damages pursuant to the ADEA, for attorney’s fees and costs in
this action, and for all general and equitable relief.”
9
The district court was forced to dismiss Vines’ and McGraw’s ADEA claims after the EEOC
brought its action. It also remanded the state claims to state court.
10
The state court suit, however, would not be barred by res judicata. The state court suit
involves a claim under the LAEDL and the prior federal court decision adjudicated the EEOC’s
ADEA claim. Therefore, the same claim or cause of action is not being advanced in this suit as in the
prior federal suit. Nilsen, 701 F.2d at 560. The EEOC also did not have standing to prosecute the
state claims under Louisiana law and thus could not have brought the action that Vines and McGraw

15
 VI

Vines and McGraw contend that, even if it is determined that the elements of res judicata or

collateral estoppel are satisfied, they should not be precluded from proceeding with their state court

claim. They argue that the EEOC failed to adequately represent them in the federal suit by voluntarily

dismissing its appeal and that their state law claims were preserved when the federal court declined

jurisdiction over the claims and remanded the state causes of action to the state court. We reject both

arguments.

A

The district court in the federal case granted ULM’s motion for summary judgment,

dismissing the EEOC’s case. Although the EEOC filed a Notice of Appeal, it withdrew its appeal.

Vines and McGraw argue that the EEOC did not adequately represent them because the EEOC

voluntarily dismissed its appeal in the federal case. As a result, they argue that res judicata and

collateral estoppel cannot act as a bar to their state lawsuits.

Vines and McGraw assert that the proper test to determine adequate representation is

whether the representative “vigorously and tenaciously protected the interests of the class” and so

long as an appeal could not be characterized as patently meritless or frivolous, a representative must

pursue an appeal or they will be considered to have provided inadequate representation.11 This court,

in Gonzalez v. Cassidy, refused to bar a subsequent lawsuit by a member of a class represented in a

class action lawsuit because the class representative had not adequately represented the interests of

bring in the current suit. Id.
11
The magistrate judge, in her report and recommendation, stated that even if there was
privity between the EEOC and the individual plaintiffs, the EEOC failed to adequately represent their
claims based on this reasoning.

16
the class. 474 F.2d 67, 75-76 (5th Cir. 1973). We held that the failure of the class representative to

appeal from a judgment which granted him relief, while denying relief to other class members,

rendered his representation of the class inadequate so as to preclude res judicata from attaching to

that judgment. Id. at 75. The court noted that the class representative “vigorously represented the

class until he obtained individual relief.” Id. at 76.

Gonzalez and the other cases cited by Vines and McGraw in support of their “adequacy”

argument were class action cases in which the courts were required under FED. R. CIV. P. 23 to

determine whether the class representative adequately represented absent members of the class . The

procedural rules of Rule 23, however, do not apply to EEOC representative actions under the ADEA.

Gen. Tel. Co. of the Northwest, Inc., 446 U.S. at 330.

The record establishes that the EEOC acted with due diligence and reasonable prudence.

They conducted and participated in discovery, filed motions for summary judgment, and responded

to motions filed by ULM. The EEOC did not inadequately represent Vines and McGraw simply

because it made a calculated decision to voluntarily dismiss its appeal.12

B

Vines and McGraw argue that when a federal court declines jurisdiction over a state law claim

in a federal lawsuit and remands the state cause of action to the state court that the state law claim

is preserved and not subject to res judicata or collateral estoppel. In King v. Provident Life and

Accident Insurance Co., the plaintiff originally filed a lawsuit in state court for causes of action under

12
The RESTATEMENT (SECOND) OF JUDGMENTS states that “[a] person i s not bound by a
judgment for or against a party who purports to represent him if. . .The representative failed to
prosecute or defend the action with due diligence and reasonable prudence. . .” § 42 (1982); see also
Mohammed, 273 F.Supp.2d at 535.

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ERISA as well as state claims pertaining to an inadequate opportunity to convert an insurance policy.

23 F.3d 926 (5th Cir. 1994). The defendant removed the case to federal court where its motion for

summary judgment was granted, dismissing all the claims except the state law claims. The district

court judge specifically stated that “plaintiffs, of course, retain the right to file another lawsuit with

regard to [the state law claims].” Id. at 928. We held that the district court’s language limited the

preclusive effect of the dismissal of the federal claims, reasoning that a court has the ability to control

the preclusive consequences of its rulings. Id. “Despite the general rule that a court cannot dictate

preclusion consequences at the time of deciding a first action, it should have power to narrow the

ordinary rules of claim preclusion. A judgment that expressly leaves open the opportunity to bring

a second action on specified parts of the claim or cause of action that was advanced in the first action

should be effective to forestall preclusion.”13 Id. (quoting 18 CHARLES A. WRIGHT ET. AL., FEDERAL

PRACTICE & PROCEDURE § 4413 (1981)).

Unlike King, in which the district court specifically stated that plaintiffs retained the right to

file another lawsuit, the district court judge made no such reservation of rights in either the remand

order or the final judgment in this case. Absent an express reservation, res judicata applies to bar a

second suit. Therefore, when two suits are pending based on the same claim or issue, the first final

judgment rendered becomes conclusive in the other action. Ellis v. Amex Life Ins. Co., 211 F.3d 935,

937 (5th Cir. 2000); see also LA. CODE CIV. PROC. ANN. art. 531 (1999).

13
The RESTATEMENT (SECOND) OF JUDGMENTS § 26 (1982) (emphasis added) also states that:
(1) When any of the following circumstances exists, the general rule of § 24 does not apply
to extinguish the claim, and part or all of the claim subsists as a possible basis for a second
action by the plaintiff against the defendant:. . .
(b) The court in the first action has expressly reserved t he plaintiff’s right to maintain the
second action. . .

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 VII

Because all of the elements of collateral estoppel have been satisfied, we find that this case

falls within the boundaries of the relitigation exception to the Anti-Injunction Act. Accordingly, we

REVERSE the judgment of the district court and REMAND the case for issuance of a permanent

injunction enjoining Vines and McGraw from proceeding with their state court age discrimination suit

against ULM.

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