dissenting:
This case presents the important question of whether the Supreme Court’s recent decision in McCarty v. McCarty, - U.S. -, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), applies where a state court’s judgment dividing military retirement benefits pursuant to state community property laws antedates McCarty, but where the right to receive some or all of the benefits so divided does not accrue until after the date of that decision. Because the court’s decision today would result in unequal treatment of similarly situated individuals, I would reverse the district court’s judgment in part, and hold that plaintiff is entitled to share only those military retirement benefits payable before June 26, 1981.
I joined in the original panel opinion affirming the district court decision to enforce the terms of a 1963 divorce decree awarding plaintiff one-half of defendant’s accumulated right under a United States Army retirement benefits program. Erspan v. Badgett, 647 F.2d 550 (5th Cir. 1981). Two weeks after that opinion was issued, the Supreme Court held in McCarty that federal law precludes a state court from dividing military retired pay pursuant to state community property laws. This court now holds that the 1963 state court judgment granting plaintiff one-half of defendant’s military retirement benefits enjoys res judicata effect,1 even though the legal principle on which that judgment rested has been overruled.
The court correctly observes that, as a general rule, the res judicata consequences of a final, unappealed judgment on the merits are not altered by the fact that the judgment rested on a legal principle subsequently overruled in another case. Federated Department Stores, Inc. v. Moitie, - U.S. -, 101 S.Ct. 2424, 2427, 69 L.Ed.2d 103 (1981). This rule is not, however, inflexible. In Jackson v. DeSoto Parish School Board, 585 F.2d 726 (5th Cir. 1978) the Fifth Circuit stated:
It has long been established that res judicata is no defense where, between the first and second suits, there has been an intervening change in the law or modification of significant facts creating new legal conditions. See, e. g., Commissioner of Internal Revenue v. Sunnen, 1948, 333 U.S. 591, 599-602, 68 S.Ct. 715, 720-21, 92 L.Ed. 898, 906-08; State Farm Mutual Automobile Insurance Co. v. Duel, 1945, 324 U.S. 154, 162, 65 S.Ct. 573, 577, 89 L.Ed. 812, 819. In these cases, the operation of the preclusion doctrines would result in unequal treatment of similarly situated individuals, some of whom have the misfortune to have sought legal redress at an earlier phase of legal developments.
Id. at 729.
A subsequent change in the law has been held to negate the res judicata effect of a number of decisions adjudicating constitutional rights. See, e. g., Jackson v. DeSoto Parish School Board, supra; Parnell v. Rapides Parish School Board, 563 F.2d 180, 185 (5th Cir. 1977), cert. denied, 438 U.S. 915, 98 S.Ct. 3144, 57 L.Ed.2d 1160 (1978); Christian v. Jemison, 303 F.2d 52 (5th Cir.) cert. denied, 371 U.S. 920, 83 S.Ct. 287, 9 L.Ed.2d 229 (1962). A subsequent change in the law should also negate the res judicata effect of a decision where, and to the extent that, (1) the rights adjudicated in that decision do not accrue until after the intervening change in the law has occurred, and (2) the operation of res judicata would result in unequal treatment of similarly situated individuals.2
*31Both circumstances are present here. Many residents of community property states who will receive military retirement benefits after the date of McCarty have obtained or will obtain a judgment of divorce. Under the present ruling an essentially fortuitous circumstance — whether their judgment of divorce was entered before or after the date of McCarty — will determine whether those individuals may be compelled by state community property laws to pay, in the years following McCarty, part of their military retirement benefits to their former spouse. Because such unequal treatment is neither necessitated nor justified by the doctrine of res judicata, I am unable to join in the panel opinion herein.
. The federal courts must give to a judgment of the court of any state the same full faith and credit that the judgment has “by law or usage” in the court rendition. 28 U.S.C. § 1738 (1970). We are therefore compelled to give to the 1963 judgment of the district court of El Paso, Texas the same res judicata effect in this action as it would have been accorded by the Texas courts. Clyde v. Hodge, 413 F.2d 48, 50 (3d Cir. 1969). Where, as here, there is no Texas law on point, we must make an educated guess as to how the highest court of Texas would rule. Nobs Chemical, U. S. A., Inc. v. Koppers Co., 616 F.2d 212 (5th Cir. 1980).
. The Supreme Court’s decision in Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591, 68 S.Ct. 715, 92 L.Ed. 898 (1948), although it involved collateral estoppel rather than res *31judicata, rested upon similar considerations. Stinnen held that an intervening change in the tax law resulting from a federal court decision precludes the applicability of collateral estoppel. The Court reasoned that if the prior determination were perpetuated as to the party involved in the proceeding, he would be accorded, in the years following the change in law, treatment different from that accorded other taxpayers of the same class. 333 U.S. at 599, 68 S.Ct. at 720.