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United States Court of Appeals,
Fifth Circuit.
No. 93-5192.
Ray HAYS, et al., Plaintiffs-Appellees,
v.
STATE OF LOUISIANA, et al., Defendants-Appellees,
v.
Bernadine ST. CYR, et al., Movants-Appellants.
April 20, 1994.
Appeal from the United States District Court for the Western
District of Louisiana.
Before POLITZ, Chief Judge, KING and DAVIS, Circuit Judges.
POLITZ, Chief Judge:
Bernadine St. Cyr and others ("St. Cyr") appeal the denial by
a three-judge district court of their attempt to intervene in
litigation challenging the Louisiana Legislature's congressional
redistricting plan. Lacking jurisdiction we dismiss the appeal.
Background
The plaintiffs challenged the legislative redistricting plan
for allegedly employing racial gerrymandering in violation of the
Voting Rights Act and their fifth and fourteenth amendment rights
to equal protection. A three-judge district court was convened
under 28 U.S.C. § 2284. A trial was held in August 1992 and the
court denied the constitutional claims and prayer for an
injunction. The court retained jurisdiction over the case,
however, continuing to consider plaintiffs' claims under the Voting
Rights Act.
1

In June 1993 the Supreme Court rendered its decision in Shaw
v. Reno,1 holding that constitutional equal protection claims apply
to apportionment schemes. The following month St. Cyr filed a
motion to intervene. In a single-judge order the court promptly
denied that motion but scheduled an evidentiary hearing in which
St. Cyr and other interested parties were invited to participate as
amici. St. Cyr appealed the district court's denial of
intervention to this court. Subsequent to that appeal the district
court declared the Louisiana apportionment scheme unconstitutional
and enjoined future elections thereunder. The State of Louisiana
noticed its appeal of that decision to the Supreme Court.2
Analysis
St. Cyr complains that the three-judge district court
improperly denied her motion to intervene. Before addressing the
merits of her appeal we must first determine whether we have
appellate jurisdiction in this matter. We now confront the
conundrum previously hypothesized: a case which is "fragmented or
split into pieces for purposes of appeal," with the "order granting
the injunction ... be[ing] appealed directly to the Supreme Court"
while related non-injunction issues are appealed to us.3 We
conclude that we may not exercise jurisdiction over St. Cyr's
appeal.
1--- U.S. ----, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993).
2See 28 U.S.C. § 1253.
3Jagnandan v. Giles, 538 F.2d 1166, 1171 (5th Cir.1976),
cert. denied, 432 U.S. 910, 97 S.Ct. 2959, 53 L.Ed.2d 1083
(1977).
2

St. Cyr understandably argues the general rule that under 28
U.S.C. § 1253 this court is the appropriate forum for the appeal of
a three-judge district court denial of an intervention.4 She
persuasively argues that the Supreme Court will not accept a direct
appeal absent a final judgment on the injunctive relief by the
three-judge court.5 The cases cited, however, differ factually and
legally from the case at bar.6
We are aware of no "Goose"7 case by the Supreme Court
disposing of this issue. We are aided, however, by a decision of
4See United States v. Louisiana, 543 F.2d 1125 (5th
Cir.1976) (citing MTM, Inc. v. Baxley, 420 U.S. 799, 95 S.Ct.
1278, 43 L.Ed.2d 636 (1975)). While the court of appeals is
generally the proper forum for appealing a denial of
intervention, we have not considered a possible exhaustion of
remedies prerequisite. Section 2284(b)(3) provides that
single-judge orders may be reviewed by the full three-judge
district court panel. St. Cyr did not avail herself of this
option. We have imposed exhaustion requirements where the body
whose decision we are reviewing has a pre-appeal mechanism
through which it might "correct its own errors." Cf. Parisi v.
Davidson, 405 U.S. 34, 37, 92 S.Ct. 815, 818, 31 L.Ed.2d 17
(1972). Whether the opportunity to appeal the single-judge order
to the three-judge district court creates a responsibility to do
so before appealing to this court is an open question. Given our
conclusion on jurisdiction, however, we do not reach this issue.
5The Supreme Court has narrowly construed its ability to
take direct appeals under section 1253. MTM; Gonzalez v.
Automatic Employees Credit Union, 419 U.S. 90, 95 S.Ct. 289, 42
L.Ed.2d 249 (1974).
6E.g., Jagnandan, 538 F.2d at 1171 ("The absence of an
appeal from the injunctive relief eliminates that hypothetical
[of simultaneous appeals in separate courts] from surfacing
here.").
7The terminology for a commanding precedent, factually on
all fours, varies, being referred to as a "Goose" case in
Louisiana, a "Spotted Horse" or "Spotted Dog" case in Alabama, a
"Cow" case in Kansas, and a "White Horse" or "White Pony" case in
Texas. Jefferson v. Ysleta Independent School Dist., 817 F.2d
303, 305 n. 1 (5th Cir.1987).
3

our colleagues in the Eighth Circuit8 who declined to act on an
appealed denial of intervention where the merits of a three-judge
court ruling was on appeal to the Supreme Court. The factual
situation at bar is the same; only the timing of the notices of
appeal differ.
We conclude that once there has been a timely and appropriate
appeal to the Supreme Court of a three-judge court's ruling on the
merits, neither 28 U.S.C. § 1253 nor the Supreme Court's narrowing
gloss suggest that the Supreme Court restrain from also considering
interlocutory orders properly appealed. We understand the Supreme
Court as indicating that when presented as a part of the appeal of
the judgment on the merits by the three-judge court it will
consider other rulings and orders of the trial court.9 We are
persuaded that we have no jurisdiction of a matter properly on
appeal before the Supreme Court.10
When the instant appeal was noticed the three-judge court had
8Benson v. Beens, 456 F.2d 244 (8th Cir.1972).
9See Mitchell v. Donovan, 398 U.S. 427, 90 S.Ct. 1763, 26
L.Ed.2d 378 (1970) (a direct appeal which includes "only a
declaratory judgment" is unreviewable) (emphasis added);
Rockefeller v. Catholic Medical Center of Brooklyn & Queens,
Inc., 397 U.S. 820, 90 S.Ct. 1517, 25 L.Ed.2d 806 (1970) ("The
judgment appealed from does not include an order granting or
denying an interlocutory or permanent injunction and is therefore
not appealable to this Court under 28 U.S.C. § 1253.") (emphasis
added). The Supreme Court's language strongly implies that it
would accept an appeal of some matter by itself normally
unreviewable on direct appeal if that appeal is included in an
appeal from an injunctive order.
1028 U.S.C. § 1291 ("The courts of appeals ... shall have
jurisdiction of appeals from all final decisions of the district
courts ... except where a direct review may be had in the Supreme
Court.").
4

not issued its final judgment on the merits. But before this court
could address the appeal which, when noticed, very likely was
properly before us, the trial court ruled on the merits and an
appeal was lodged thereon with the Supreme Court. With that
lodging our appellate jurisdiction was impacted. Were we to rule
otherwise our decision on the merits of the intervention order
could cast a shadow or impinge upon the Supreme Court's
functioning. As a lower federal court we have neither the
authority nor inclination to do so.
We conclude that we lack appellate jurisdiction over the
appeal of the denial of intervention to the appellants herein and,
accordingly, their appeal is DISMISSED.

5