dissenting:
Paraphrasing the famous quip of Judge Henry Friendly 1 the extended and scholarly opinion of Judge Randall must be right because it is so wrong. Gulf Oil Corp. v. Panama Canal Corp., 407 F.2d 24, 26 (5th Cir. 1969); Sands v. Wainwright, 491 F.2d 417,.431 (5 Cir. 1974) (en banc) (Brown, C. J., concurring); W. S. Rauch Co. v. Kaiser Steel Corp., 388 F.2d 257, 267 (10th Cir. 1967) (Brown, J., dissenting) rev’d 391 U.S. 593, 88 S.Ct. 1753, 20 L.Ed.2d 835 (1968); Higginbotham v. Ford Motor Co., 540 F.2d 762, 775 (Brown, C. J., dissenting) (5 Cir. 1976). Of it may also be said what we stated concerning Judge Sterry Waterman’s opinion for us in United States v. Rochelle, Trustee, 363 F.2d 225 (5th Cir. 1966). A “painstaking opinion by Judge Waterman-painstaking not only in the careful exploration of every conceivable way to find jurisdiction, but also painstaking in the evident sense of trying to find an escape from a painfully unfortunate result . . .. ” Lawrence v. United States, 378 F.2d 452, 467 (5th Cir. 1967).
'For my scripture I start with § 1346(f): The district courts shall have exclusive original jurisdiction of civil actions under section 2409a to quiet title to an estate or interest in real property in which an interest is claimed by the United States.
28 U.S.C.A. § 1346(f).
And for my Golden Text I need go no further than the Court’s opinion:
In the federal action, the Keys sued the Wises and the United States. The Keys’ assertion of ownership of the land was a claim adverse to an interest claimed by the United States, because the United States had acquired its levee easement through the Wises. That claim not only provided the Keys with access to the Federal court under the terms of 28 U.S.C.A. §§ 2409a and 1346(f), but also gave that court exclusive jurisdiction over the entire civil action and not merely over the claim against the United States. [629 F.2d 1049,1057]
First analyzing the case in terms of traditional abstention in in rem proceedings the Court states:
Both the state court and the federal court actions were actions in rem concerning the same res. A court’s otherwise valid power to take jurisdiction of an in rem action is qualified by the rule that when a court of competent jurisdiction has obtained possession, custody, or control of the disputed res in an in rem action, that possession cannot be disturbed by any other court.
And then adds:
Moreover, “[t]he rule has been declared to be of especial importance in its application to Federal and state courts.” Farmers Loan & Trust Co. v. Lake St. Elevated R. Co., 177 U.S. 51, 61, 20 S.Ct. 564, 568, 44 L.Ed. 667 (1900). [629 F.2d 1059],
The court recognizes that in “this case the federal court was the first court to assume jurisdiction of the res in dispute, thereby activating the bar of exclusive in rem jurisdiction.” [629 F.2d 1059]
The court sounds once again the decisive significance of specific congressional direction:
*1069When Congress has directed, however, not only that the federal courts may take jurisdiction of a particular class of cases, but also that they have exclusive jurisdiction of those cases, abstention to permit adjudication of the entire case in a state forum defeats the purpose of that legislation. [629 F.2d 1059]
Without equivocation the court then reaches the awesome climax: “[A]bstention in this case was clearly improper . ...”2 [629 F.2d 1059]
The court in the analytical juggling process-sometimes, perhaps too often, more euphemistically described as balancing-begins with whether the Federal Court may collaterally review the Mississippi decree of ownership in the Wises. In so doing the Court again ascribes dominant significance to Federal Court exclusivity and the congressional purpose in providing for it:
[W]e think the policy against the Mississippi court acting beyond its jurisdiction in this case is strong. Congress enacted § 1346(f) knowing full well that, with minor exceptions, the law applied in every quiet title action would be the law of a state. Nevertheless, by vesting the exclusive jurisdiction of those actions brought pursuant to § 2409a in the federal courts, Congress unequivocally and, we think, emphatically, intended to withdraw resolution of those questions from the jurisdiction of all state courts. See California v. Arizona, 440 U.S. 59, 66-67, 99 S.Ct. 919, 924, 59 L.Ed.2d 144 (1979) (“The congressional purpose was simply to confine jurisdiction to the federal courts and to exclude the courts of the States, . . ..” [629 F.2d 1060]
Whether the Mississippi decree may or may not be collaterally reviewed by the Federal District Court is in itself not decisive. What, and all that ultimately matters is whether preclusive effect must be given to a Mississippi decree from a Court that ought never have been given the opportunity to adjudicate the case by a Federal Court charged with the statutory obligation to hear, try and determine the controversy to the exclusion of all other tribunals.
The Court recognizes, as we all must, that to the high principles of res judicata/collateral estoppel “special circumstances [may] warrant an exception to the normal rules of preclusion.” Montana v. United States, 440 U.S. 147, 153, 155, 99 S.Ct. 970, 973, 975, 59 L.Ed.2d 210 (1979).
Except that the Federal Court’s jurisdiction was invoked by express terms of a statute, not a constitutional claim, our case fits exactly England v. Louisiana Board of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964), in which, the majority states, a litigant who had “properly invoked the jurisdiction of a Federal District Court to consider federal constitutional claims” was then “compelled, without his consent . . ., to accept a state court’s determination of these claims.” 375 U.S. at 415, 84 S.Ct. at 464 (footnote omitted), quoted in Montana, 440 U.S. at 163, 99 S.Ct. at 978. Quoting at length from England, the majority emphasizes the limited effectiveness of appellate corrective action and ■ the high value of fact determination by the Federal Judge. As to this the majority recognizes that “specific fact findings and legal conclusions are required of federal trial courts, and are essential to meaningful review by an appellate court. See, e.g., Complaint of Ithaca Corp., 582 F.2d 3, 4 (5th Cir.1978),” [629 F.2d 1065], but then passes over lightly that the “findings and conclusions of the state trial court in this case would not pass muster in the federal system.”3 [629 F.2d 1065]
The fact that the Keys at one stage may have suggested that the Federal Court determine the case on the Mississippi trial record is not, as the court properly states, a waiver of the claim to a right of full federal *1070pretrial discovery and evidentiary submission. But by our ruling the keys lost much more than that. They lost the invaluable right to compel Judge Ready to determine, not only historical facts but the factual/legal significance of these facts without being hogtied by the fact findings of Mississippi Courts which we now mandate.
We must forget, as the court itself says, “[Although this case involved a claim under state law, jurisdiction to decide it is exclusively federal”. [629 F.2d 1062, 1062]
The right to a full Federal trial-free of any inhibitions or external restraints, with an appeal to this Court-compels acceptance-as England forbids-of a “state court determination, against a party’s wishes, for his right to litigate his federal claims fully in the federal courts.” 375 U.S. at 416-17, 84 S.Ct. at 466.
The Court adds to the riddle of the enigma wrapped in a mystery. It first stated:
The legal questions ... in this case-whether § 2409a applied to the state court action and whether the district court had the power to abstain-are both unsettled, and we express no view on how either question should be resolved. [629 F.2d 1060]
It posed the alternatives in this fashion:
If it was beyond the district court’s power to decline to exercise the jurisdiction Congress conferred exclusively on it, then the abstention order would be invalid as a judicial act going beyond the court’s jurisdiction. It would seem to follow from that proposition that the abstention, if invalid, would not operate to lift the bar of exclusive in rem jurisdiction, and consequently that the state court could not properly take jurisdiction of the case. On the other hand, if the district court had the power to abstain despite its exclusive jurisdiction, then, even if improper, the abstention was a valid judicial act. (emphasis in original) [629 F.2d 1060]
It seems to me the Court necessarily answers the unanswered, reserved query when it holds “. . . that the judgment of the Mississippi Court as to jurisdiction is not subject to collateral attack on this appeal.” [629 F.2d 1061]
And, unless the Court now means to make clear what it acknowledges is unclear 4 its action as to preclusion adds to the confusion. Since Will v. Calvert Fire Ins. Co., 437 U.S. 655, 666, 98 S.Ct. 2552, 2559, 57 L.Ed.2d 504 (1978), expressly avoided the question whether a federal court “is without power to stay proceedings, in deference to a contemporaneous state action, where the federal courts have exclusive jurisdiction over the issue presented,” id. at 666, 98 S.Ct. at 2565, I think the views of Mr. Justice Brennan (quoted extensively 629 F.2d 1062) should guide us here until the Supreme Court authoritatively answers the question.
One last comment. Our decision not only took away the Keys right to a trial in the Federal Court. In effect it takes away their right to a trial of their claim against the Wises-not just their right to defend the Wises’ clear title claim-in any tribunal.5
The clear congressional policy of §§ 2409a and 1346(f) was to require Federal Court determination of any state-law based claim drawing in question continued ownership of the United States. That was the precise basis of the Keys claim. The validity of the Key’s claim ousting the United States could not be determined except by trial-which *1071Congress ordained was to take place exclusively in the Federal Court.
Suppose the Mississippi Courts had ruled against the Wises. Does anyone think for a moment that the Federal Court would have been precluded, at least as to the Keys, by res judicata or, more likely, collateral estoppel? This would mean a second and superfluous trial where a single one would do.
Certainly Congressional policy ought not to be flouted by the sheer circumstance of how the case comes out. Exclusivity should be applied with an even hand.
I therefore respectfully dissent.
. “The compulsion felt by my brothers, * * * to reach what seems a palpably unjust result reminds me of Chief Justice Erie’s observation as to the occasional predilection of the best of judges for ‘a strong decision,’ to wit, one 'opposed to common sense and to common convenience.’ * * Spanos v. Skouras Theatres Corp., 364 F.2d 161, 167 (2 Cir., 1966).
. The court reiterates this: “. . . . it is true that this specific case ought not to have reached the state court by way of abstention . ...” [629 F.2d 1064]
. The uncertainties and unknowns are highlighted in the court’s note 10 which aptly describes what we now hold to be binding and beyond even superficial review as “an enigma cloaked in a mystery."
. The court states:
Even though we have held that the state court judgment is not open to collateral attack, the preclusive effect of a state court determination on any aspect of a claim within the exclusive jurisdiction of the federal courts is unclear. See, e.g.. Note, Res Judicata: Exclusive Federal Jurisdiction and the Effect of Prior State Court Determinations, 53 Va.L.Rev. 1360 (1967). [629 F.2d 1062]
. This predicament is fully discussed by the Court [629 F.2d 1057, 1058] and note 7: A State Court claim against the Wises (necessarily involving the United States easement) would trigger a removal to the Federal Court and an automatic dismissal for lack of State Court jurisdiction.