                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
              IN THE UNITED STATES COURT OF APPEALS
                                                              June 14, 2005
                      FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                      ______________________                     Clerk

                           No. 04-40421
                      ______________________

                    THOMAS J. BALLENGER ET AL.
                                                           Plaintiffs

                        ELLA RAY WHITEHEAD

                                                 Plaintiff-Appellant

                              versus

                      MOBIL OIL CORPORATION

                                                            Defendant

       ___________________________________________________

                   OZAN PATTERSON, ETC.; ET AL.

                                                           Plaintiffs

JOHN BALLENGER, Individually and as Rule 23 Class Representative on
behalf of all other similarly situated individuals.

                                                 Plaintiff-Appellant

                              versus

MOBIL OIL CORPORATION; FORUM INSURANCE COMPANY; MOBIL CORPORATION;
GLENDA MATOUSE, Individually and as Agent for Mobil Oil
Corporation; ROBERT GRONWALDT, Individually and as agent for Mobil
Oil Corporation; BEN STIFF, Individually and as agent for Mobil Oil
Corporation; CHARLES TEEPEES, Individually and as agent for Mobil
Oil Corporation; NATIONAL UNION FIRE INSURANCE COMPANY OF
PITTSBURGH, PENNSYLVANIA; AIG NATIONAL INSURANCE COMPANY; AIG RISK
MANAGEMENT INC.; AIG INC.; ENERGY PRINTING INC.; AMERICAN HOME
ASSURANCE COMPANY; INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA

                                               Defendants-Appellees




                                1
         ___________________________________________________

          Appeals from the United States District Court for
                    the Eastern District of Texas
           (C.A. No. 1:71-CV-087 and C.A. No. 1:99-CV-156)
         ___________________________________________________


Before SMITH, DENNIS, and PRADO Circuit Judges.


DENNIS, Circuit Judge:*

     The plaintiffs brought separate suits against the defendants

in federal court. The district court ruled against the plaintiffs,

the plaintiffs appealed and this court affirmed the district

court’s judgment.     Thereafter, the defendants applied to the

district court for an order enjoining the plaintiffs from pursuing

claims against the defendants in state court.     The district court

granted the order and, finding no error, we AFFIRM.

                             BACKGROUND

     The district court entered an order enjoining the plaintiff-

appellants, John Ballenger and Ella Ray Whitehead, 1 from pursuing

their pending litigation against Mobil Corporation, ExxonMobil Oil

Corporation, Forum Insurance Company and other defendants in the


     *
      Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
     1
      Whitehead’s name before remarriage was Mrs. Thomas
Ballenger and she is referred to as such in most of the prior
litigation.

                                  2
Texas courts.     The district court concluded that the claims and/or

issues asserted in the Texas action had already been litigated in

the federal courts and, therefore, the defendants were entitled to

an   injunction       under   the   relitigation    exception     to   the   Anti-

Injunction Act, 22 U.S.C. § 2283.

      The     procedural      history   of   this   appeal   is    complicated,

involving multiple suits in multiple forums over a period of more

than twenty years. The litigation dates back to the 1970 death of

Thomas Ballenger, Whitehead’s husband and Ballenger’s father, as a

result of an accident at his assigned worksite, which was owned and

controlled by Mobil.2           Whitehead sought and received workers'

compensation benefits from Forum, Mobil's workers’ compensation

carrier at that time.          She also filed suit, on behalf of herself

and her minor children, against Mobil claiming gross negligence and

seeking punitive damages.3 The jury found Mobil grossly negligent,

but this court reversed concluding that the evidence did not

support that finding.4         In that suit, Mobil stated in its pleadings

that it was a subscriber under the Texas Workers' Compensation Act.


      2
      Mobil Corporation and ExxonMobil Oil Corporation are
jointly referred to as “Mobil” throughout this opinion as any
distinction between the two entities is irrelevant to our
decision.
      3
      See Ballenger v. Mobil Oil Corp., 488 F.2d 707, 708-09 (5th
Cir. 1974).
      4
          Id., 713.

                                         3
As a result,         Whitehead was not entitled to any damages for

ordinary negligence.5

     In 1998, fourteen years after the final judgment was entered

in the wrongful death suit, Whitehead sought to intervene in Texas

court proceedings against Mobil and other defendants.6 Thereafter,

Ballenger also sought intervention in a multiparty    action against

Mobil, Forum and other defendants in the Texas courts.7    The cases

were consolidated in 2002.8      The central allegation in the Texas

case is that Mobil had misrepresented its status as a subscriber

under the Texas Workers’ Compensation Act.         According to the

plaintiffs, Forum was wholly owned by Mobil and, therefore, Mobil

was illegally self-insuring.      The plaintiffs asserted claims of

fraud, fraudulent inducement, conspiracy, violations of the Texas

Insurance Code, breach of contract and intentional infliction of

emotional distress.

     On March 23, 1999, while the state court litigation was

pending, Whitehead filed a "Request for Relief from Judgment" in



     5
         Id., 708.
     6
      See Whitehead v. Mobil Corp., No. B-159, 657 (60th Dist.
Ct., Jefferson County).
     7
      See McClelland v. Gronwalt, No. A-144, 481 (58th Dist. Ct.,
Jefferson County, Tex.).
     8
      The consolidated case is styled Whitehead v. Gronwalt,
Cause No. A-144, 481-C (60th Dist. Ct., Jefferson County, Tex.)

                                   4
federal    court   under    Fed.     R.   Civ.    P.     60(b)    ("the    Rule   60(b)

motion"). She requested that the district court set aside the 1974

judgment in     the   wrongful       death    suit,      arguing    that    Mobil   had

perpetrated a fraud upon the court by representing that it was a

workers' compensation subscriber.                On that same date, March 23,

1999, Ballenger and Ozan Patterson9, filed an action in federal

court alleging that Mobil violated the Racketeer Influenced and

Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq.,                            by

conspiring with various insurers (including Forum) and claims

adjusters over a thirty-year period (hereinafter "the RICO suit").10

Specifically,      they    alleged    that    the       defendants      engaged   in   a

long-term scheme to deprive the plaintiffs of their common-law

negligence causes of action against Mobil for workplace injuries.

Patterson    and   Ballenger     also     filed     a    motion    to   intervene      in

Whitehead’s case.

     Both the RICO suit and the Rule 60(b) motion were ultimately

assigned to Judge Cobb. The plaintiffs in both cases filed motions

for his disqualification, which he denied. The defendants moved for

summary judgment in the RICO suit.               Judge Cobb granted the motion

for summary judgment, denied the motions for intervention, and

     9
         Patterson is not a party to this appeal.
     10
      Ballenger and Patterson brought the RICO suit as a class
action under Fed. R. Civ. P. 23, but this court vacated the
district court's class certification. See Patterson v. Mobil Oil
Corp., 241 F.3d 417, 419 (5th Cir. 2001).

                                          5
denied Whitehead’s Rule 60(b) motion in a single opinion.                    The

plaintiffs appealed.

     This court addressed both the RICO suit and the Rule 60(b)

motion in one opinion, Patterson v. Mobil Oil Corp.11                The panel

concluded that Judge Cobb should have granted the plaintiffs’

motions to disqualify him.        The panel also determined, however,

that Judge Cobb’s failure to recuse himself was harmless error

because the merits of the summary judgment motion would be reviewed

de novo by this court on appeal.         Furthermore, because the Rule

60(b) motion was based on the same allegations as the summary

judgment motion, the merits of that motion would also be determined

by the de novo review of the summary judgment motion.                 Finally,

reviewing the grant of summary judgment to the defendants in the

RICO suit de novo, the panel determined that Mobil was a subscriber

under the Texas Workers’ Compensation Act as a matter of law.                The

Supreme Court     denied   the   plaintiffs’   petition   for    a    writ    of

certiorari.12

     Meanwhile, the plaintiffs continued to pursue their state

court litigation. On December 9, 2003, the defendants filed in the

district court their “First Amended Motion to Reopen Case and

Permanently     Enjoin   State   Court   Proceedings   and      Request      for


     11
          335 F.3d 476, 480-483 (5th Cir. 2003).
     12
          Patterson v. Mobil Oil Corp., 540 U.S. 1108 (2004).

                                     6
Expedited Hearing.”        According to the defendants, because the

issues raised by the plaintiffs in state court had already been

fully litigated in federal court, the plaintiffs should be enjoined

from pursuing their claims in the Texas courts.              The district court

agreed and this appeal followed.

                                     I.

     The     plaintiffs    claim    that       the    district      court     lacked

jurisdiction to consider the defendants’ motion.                  According to the

plaintiffs, the district court lost subject matter jurisdiction

over the Rule 60(b) motion and the RICO suit when it entered

judgment    following     the   remand       issued   by   this    court.13      The

plaintiffs argue that the district court could not thereafter take

any further action in these cases without violating the mandate

rule.     This argument lacks merit.

     The mandate rule requires a lower court to "implement both the

letter and the spirit of the appellate court's mandate and ... not

disregard the explicit directives of that court."14                   The rule is



     13
      The plaintiffs argued in their briefs that the district
court also lacked jurisdiction under the Rooker-Feldman doctrine.
At oral argument, however, the plaintiffs conceded that the
Supreme Court’s decision in Exxon Mobil Corporation v. Saudi
Basic Industries Corporation, 125 S. Ct. 1517 (2005), foreclosed
their argument.
     14
      United States v. Lee, 358 F.3d 315, 321 (5th Cir. 2004)
(quoting United States v. Matthews, 312 F.3d 652, 657 (5th Cir.
2002)).

                                         7
occasionally expressed in jurisdictional terms as providing that a

district court lacks jurisdiction to review an appellate court’s

decision.15 The reach of the mandate rule, however, is limited to

issues actually decided by the appellate court. Thus, “[a] mandate

controls on all matters within its scope, but a district court on

remand is free to pass upon any issue which was not expressly or

impliedly disposed of on appeal.”16   In the previous appeal in this

case, this court did not expressly or impliedly pass on the issue

of whether the plaintiffs should be enjoined from pursuing their

claims against the defendants in the Texas courts.    Therefore, the

mandate rule is not implicated in the present case.

     The plaintiffs’ remaining arguments concerning the district

court’s jurisdiction are actually procedural.     Specifically, the

plaintiffs contend that the defendants could only request an

injunction by filing Rule 60(b) motions for relief from the final

judgments entered after remand from this court or by filing a new

action.   The plaintiffs did not raise this objection below and

have, therefore, failed to preserve for appellate review any

objection to the form of the defendants’ motion.17

     15
       See, e.g., Fine v. Bellefonte Underwriters Ins. Co.,
758 F.2d 50, 52 (2d Cir. 1985).
     16
       Newball v. Offshore Logistics International, 803 F.2d 821,
826 (5th Cir. 1986).
     17
       See Butler Aviation Int'l v. Whyte, 6 F.3d 1119, 1128 (5th
Cir. 1993).

                                 8
                                  II.

       The Anti-Injunction Act provides that a "court of the United

States may not grant an injunction to stay proceedings in a State

court except as expressly authorized by Act of Congress, or where

necessary, in aid of its jurisdiction, or to protect or effectuate

its judgments."18 “This statute is generally recognized to permit

a district court to enjoin state court proceedings on only three

bases: 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.”19   The district

court concluded that this case fits within the third condition,

commonly known as the relitigation exception to the Anti-Injunction

Act.        The plaintiffs contend that the district court erred in

concluding that the relitigation exception applies and that the

injunction is therefore barred by the Anti-Injunction Act.      The

application of the relitigation exception is a question of law that

this court reviews de novo.20

        "The relitigation exception was designed to permit a federal

court to prevent state litigation of an issue that previously was



       18
            28 U.S.C. § 2283.
       19
      St. Paul Mercury Ins. Co. v. Williamson, 332 F.3d 304,
308-9 (5th Cir. 2003).
       20
            Id., 308.

                                   9
presented to and decided by the federal court. It is founded in the

well-recognized concepts of res judicata and collateral estoppel."21

Thus, the relitigation exception applies if a judgment of the

federal court precludes the claims (res judicata) or the issues

(collateral estoppel) raised in the state litigation.    We conclude

that the plaintiffs are collaterally estopped by the federal

judgments from litigating the issue of Mobil’s subscriber status in

state court.

     Collateral estoppel “is limited to matters distinctly put in

issue, litigated, and determined in the former action.    This court

has determined that collateral estoppel encompasses three elements:

(1) the issue at stake must be identical to the one involved in the

prior action; (2) the issue must have been actually litigated in

the prior action; and (3) the determination of the issue in the

prior action must have been a necessary part of the judgment in

that earlier action.     Moreover, the legal standard used to assess

the issue must be the same in both proceedings. However, the actual

claims and the subject matter of each suit may differ. Finally,

unlike claim preclusion, the doctrine of issue preclusion may not

always require complete identity of the parties."22     Accordingly,



     21
          Chick Kam Choo v. Exxon Corp., 486 U.S. 140, 147 (1988).
     22
      Next Level Communs. L.P. v. DSC Communs. Corp., 179 F.3d
244, 250 (5th Cir. 1999)(internal quotation marks omitted;
internal citations omitted).

                                   10
in determining whether the collateral estoppel branch of the

relitigation exception applies to the plaintiffs, we must consider

whether the issues raised in the Rule 60(b) motion, the RICO suit

and the state case are identical, whether that issue formed a

necessary part of the judgments in the federal cases and whether

the applicable legal standard is the same in the federal and state

cases.23

     Identical Issues

     Whitehead’s Rule 60(b) motion sought to reopen the 1974

judgment against her on the grounds that Mobil had perpetrated a

fraud upon the court by misrepresenting its workers’ compensation

subscriber status.      Ballenger’s federal complaint alleged that

Mobil and its insurers engaged in a long-term scheme to deprive him

and others of their common-law negligence causes of action for

workplace injuries.     According to the complaint, Mobil allegedly

used "fronting" insurance companies to obtain "sham" workers'

compensation policies in order to hide the fact that it was not a

workers’ compensation subscriber under Texas law.            In the state

court litigation, the plaintiffs contend that the defendants,

including Mobil and Forum, fraudulently stated that Mobil was a

subscriber   under   the   Texas   Workers’   Compensation   Act   thereby

inducing them to forgo their common law causes of action against


     23
      The plaintiffs do not dispute that the issue was actually
litigated.

                                    11
Mobil.    The issue in the state case is therefore identical to that

raised by Whitehead’s Rule 60(b) motion and Ballenger’s RICO suit.24

     Necessary to the Judgment

     The plaintiffs do not dispute that this court’s conclusion

regarding Mobil’s subscriber status was necessary to the summary

judgment in the RICO suit.      Whitehead, however, argues that her

Rule 60(b) motion was denied as untimely and that the issue of

Mobil’s   subscriber   status   was    not   a   necessary   part   of   that

judgment.    In her motion, Whitehead argued that the one year time

limit imposed by Rule 60 for motions brought under subsections 1,

2, and 3 should not be imposed in her case because Mobil’s

fraudulent scheme and conspiracy practices prevented her from


     24
      In their reply brief, both plaintiffs contend that the
injunction is overly broad because it prohibits them from
pursuing issues that are distinct from those raised in the
federal litigation. Specifically, the plaintiffs argue that the
state litigation includes claims based upon unfair claims
settlement practices and that they should be permitted to pursue
those claims in state court. Because this issue was first raised
in the reply brief, we need not consider the scope of the
injunction.   See City of Abilene v. United States Envtl. Prot.
Agency, 325 F.3d 657, 661 n. 1 (5th Cir. 2003)(This court does
not consider arguments raised for the first time in a reply
brief). Moreover, the plaintiffs never argued in the district
court that some of the state court claims are unrelated to the
issue of Mobil’s subscriber status. Thus, we decline to consider
whether the injunction is overly broad. See Horton v. Bank One,
N.A., 387 F.3d 426, 435 (5th Cir. 2004) ("Arguments not raised in
the district court cannot be asserted for the first time on
appeal.") (quoting In re Liljeberg Enters., Inc., 304 F.3d 410,
427 n.29 (5th Cir. 2002)).



                                      12
bringing   her    motion    sooner.      The   district   court     noted       that

precedent from the Supreme Court and this court establishes that a

plaintiff cannot evade the one-year time bar by alleging a fraud

upon the court.        Thereafter the district court stated:

     “Apart from these defects in the request, plaintiff’s factual

allegations do not, as a matter of law, set forth any illegal

conduct on the part of Mobil.           In short, plaintiff contends that

Mobil owned Forum, that Mobil absorbed all amounts paid as workers’

compensation benefits, and that Mobil was, in effect, an illegal

self-insurer.     Fifth Circuit and Texas courts have held, however,

that workers’ compensation arrangements such as the Mobil-Forum

arrangement      are    perfectly     lawful   under   the    Texas       Workers’

Compensation Act . . . . There is nothing improper, as the cases

explain, with      an    employer   ultimately   paying      for   100%    of    all

workers’ compensation claims paid out by its carrier . . . The

actual facts set forth in the request cannot, as a matter of law,

support the various labels of ‘fraud’ that plaintiffs place upon

the Mobil-Forum workers’ compensation program.”25

     Whitehead subsequently appealed the judgment of the district

court to this court.       In that appeal, however, Whitehead failed to

brief the merits of the Rule 60(b) motion and only briefed the



     25
      Patterson v. Mobil Oil Corp., No. 1:99-CV-156 and No.
1:71-CV-087, Eastern District of Texas, Beaumont Div. (March 28,
2002) at 4-5.

                                        13
matter of Judge Cobb’s failure to recuse.    Thus, the panel stated:

“we consider the Rule 60(b) ruling only as it relates to the

recusal issue.”26     Whitehead cites that statement and argues that

this court did not consider the merits of her fraud allegations.

This is incorrect.     This court considered the merits of the fraud

allegations upon which Whitehead’s Rule 60(b) motion was predicated

in determining whether Judge Cobb’s failure to recuse himself was

harmful error.      This court concluded that any error was harmless

because “[t]he Rule 60(b) motion is premised on Mobil's alleged

fraud with respect to its subscriber status.        Accordingly, the

merits of the motion will be determined by our de novo evaluation

of the district court's summary judgment ruling, which was based on

the fraud issue.”27    Thus, this court expressly ruled on the merits

of both the Rule 60(b) motion and the summary judgment when it

stated that: “despite the plaintiffs’ vigorous arguments to the

contrary, we conclude that there is no genuine issue of material

fact with regard to Mobil’s subscriber status.    And, in turn, there

is no genuine issue of material fact that Mobil was engaged in a

scheme to defraud its employees by lying about its subscriber




     26
          Patterson v. Mobil Oil Corp., 335 F.3d 476, 483 (5th Cir.
2003).
     27
          Id., 486 (emphasis added).

                                   14
status.”28     This ruling was necessary to the judgment affirming the

denial of Whitehead’s motion because, according to this court’s

decision, the de novo review of the fraud allegation, common to

both the      Rule     60(b)   motion   and    the    summary    judgment    motion,

rendered Judge Cobb’s failure to recuse himself harmless error.

      Same Legal Standard

      The legal standard applied to the plaintiffs’ claims is the

same in both state and federal court.                In either jurisdiction, the

question is whether Mobil was a subscriber under the Texas Workers’

Compensation Act. The plaintiffs argue that under RICO Ballard had

the   burden    of     proving   Mobil’s      fraud   but   in   the   state   court

litigation Mobil would have the burden of proving that it was a

workers’ compensation subscriber. Any difference in the applicable

standard of proof is immaterial, however, as both the district

court and this court concluded that, even assuming the plaintiffs’

factual allegations were true, Mobil was a subscriber under the

Texas Workers’ Compensation Act as a matter of law.                         In other

words, there are no facts in dispute and the applicable burden of

proof is irrelevant.

      In sum, because each of the plaintiffs has received a judgment

in federal court determining whether Mobil fraudulently asserted

that it was a subscriber under the Texas Workers’ Compensation Act,



      28
           Id., 492.

                                         15
the order enjoining the plaintiffs from litigating the same issue

in state court does not violate the Anti-Injunction Act. Moreover,

because the application of the relitigation exception in this case

is based on principles of collateral estoppel, the district court

did not err by enjoining Whitehead from raising the issue against

any of the defendants, even those who were not parties to the

wrongful death suit.29

                                   III.

     The   plaintiffs    finally    claim    that   the     district   court

erroneously   granted    the   defendants’   motion   for    an   injunction

without considering the equitable requirements for an injunction.

In particular, the plaintiffs contend that the defendants failed to

plead or prove that they would suffer irreparable injury if forced

to continue with the state litigation or that they lack an adequate

remedy at law.   This court reviews a district court’s decision to

grant an injunction for an abuse of discretion.30

     Generally, to win a permanent injunction, a petitioner must

show “a clear threat of continuing illegality portending immediate



     29
       Vines v. Univ. of La. at Monroe, 398 F.3d 700 (5th Cir.
2005)(Stating, in relitigation context, “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.”(Emphasis
added)).
     30
       Karaha Bodas Co., L.L.C. v. Perusahaan Pertambangan Minyak
Dan Gas Bumi Negara, 335 F.3d 357, 363 (5th Cir. 2003).

                                    16
harmful consequences irreparable in any other manner.”31 This court

has held, however, that no independent demonstration of irreparable

harm or a lack of alternative remedies is necessary to win an

injunction under the relitigation exception to the Anti-Injunction

Act.        Rather, demonstrating that the state litigation concerns an

issue actually decided by the federal courts is sufficient to

demonstrate both the harm of continuing the state litigation and

the lack of an adequate remedy at law.32          Accordingly, because the

district        court   correctly   concluded   that   the   plaintiffs   are

attempting to relitigate matters in the Texas courts that have been

decided by the federal courts, it did not abuse its discretion by

granting the injunction.33

       31
            Posada v. Lamb County, 716 F.2d 1066, 1070 (5th Cir.
1983).
       32
       See, e.g., Vasquez v. Bridgestone/Firestone, Inc., 325
F.3d 665, 667 (5th Cir. 2003)(district court’s finding that
plaintiff was attempting to relitigate final judgment of federal
court is sufficient to support injunction); Quintero v. Klaveness
Ship Lines, 914 F.2d 717, 721 (5th Cir. 1990).
       33
      The plaintiffs also argue that the district court should
have accorded full faith and credit to an order of the state
court denying the defendants’ motion for abatement on the grounds
of collateral estoppel and res judicata. Such an order is not
entitled to full faith and credit. See 28 U.S.C. § 1738
(2004)(Federal courts must 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"; Frost Nat'l Bank v. Burge, 29 S.W.3d 580,
595 (Tex. App. 2000)(interlocutory judgments are not given
preclusive effect under Texas law); Serrano v. Union Planter's
Bank, N.A., 155 S.W.3d 381, 381 (Tex. App. 2004)(denial of motion

                                       17
     AFFIRMED.




to abate is interlocutory in nature and not appealable).


                               18
