Weiser v. White

• Decision Date: 02 January 1975
• Docket Number: No. 73-4003,73-4003
• Citation: 505 F.2d 912
• Parties: Dan WEISER et al., Plaintiffs-Appellants-Appellees, v. Honorable Mark WHITE, Jr., Secretary of State of the State of Texas,Defendant-Appellee, Thelma Washington et al., Movants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 912

505 F.2d 912

Dan WEISER et al., Plaintiffs-Appellants-Appellees, v. Honorable Mark WHITE, Jr., Secretary of State of the State of Texas,Defendant-Appellee, Thelma Washington et al., Movants-Appellants.

No. 73-4003.

United States Court of Appeals, Fifth Circuit.

Jan. 2, 1975.

John F. Jordan, Sylvia M. Demarest, Edward B. Cloutman, III, Dallas, Tex., for movants.

Ben L. Krage, Lawrence Fischman, Dallas, Tex., for Weiser et al.

John L. Hill, Atty. Gen., Pat Bailey, Larry F. York, Elizabeth B. Levatino, Asst. Attys. Gen., Austin, Tex., for defendant-appellee.

Nathan W. Eason, J. Douglas McGuire, San Antonio, Tex., for Archer et al.

Morris Jaffe, Richard F. Smith, Dallas, Tex., for Allen et al.

Richard N. Johnston, Dallas, Tex., for Johnston et al.

Michael J. Whitten Denton, Tex., for Dodd et al.

J. P. Word, Austin, Tex., for Golden et al.

David R. Richards, Austin, Tex., for Briones et al.

Before TUTTLE, CLARK and RONEY, Circuit Judges.

RONEY, Circuit Judge:

This case consists of two appeals from two separate rulings of a duly constituted three-judge district court which was concerned with the reapportionment of the Texas state legislature. One appeal is from the denial of a motion to intervene, the other from a denial of an award of attorney's fees to the original successful plaintiffs. We hold that the Supreme Court of the United States has exclusive jurisdiction of appeals from orders of this nature by a three-judge court, and dismiss both appeals for lack of jurisdiction in this Court.

We have previously held that an appeal from the denial by a three-judge court of an attorney's fee request, ancillary to the main action and properly before the three-judge court, is not within the jurisdiction of this Court. Haining v. Roberts, 453 F.2d 1223 (5th Cir. 1971), cert. denied,406 U.S. 948, 92 S.Ct. 2054, 32 L.Ed.2d 336 (1972). Although that case involved a class action for discharge for refusal to sign a loyalty oath by plaintiffs who sought job reinstatement and back pay, we see no distinction between that case and this one which would weaken it as the controlling authority here.

The appeal from the denial of intervention presents us with a slightly different problem because there appears to be no case in this Court directly in point. The appellants-intervenors filed simultaneous appeals to this Court and to the Supreme Court. The Supreme Court has already dismissed the appeal to it. Washington v. White, 416 U.S. 964, 94 S.Ct. 1985, 40 L.Ed.2d 554 (1974). Intervenors argue that since the Supreme Court dismissed their appeal, this Court must have appellate jurisdiction in order for them to have some forum for review of the district court's denial of their motion to intervene. Even if such an argument could have force in determining the presence of jurisdiction in this Court, we view the Supreme Court's dismissal of intervenors' appeal as a decision on the merits, not a decision that it lacked jurisdiction.

This case has been before the courts for some time. A detailed statement of facts is set forth in the Supreme Court's opinion on an earlier appeal. White v. Weiser, 412 U.S. 783, 93 S.Ct. 2348, 37 L.Ed.2d 335 (1973). Briefly, Weiser and others originally filed suit in the United States District Court for the Northern District of Texas against the Secretary of State of Texas challenging the reapportionment of the Texas legislature under Texas Senate Bill 1 (S.B. 1), as a violation of the 'one-man, one-vote' principle of Article I, Section 2 of the United States Constitution and the Equal Protection Clause of the Fourteenth Amendment. A three-judge district court was convened. See 28 U.S.C.A. 2281, 2284.

After receiving evidence and hearing argument, the court found the legislature's plan of apportionment unconstitutional and ordered the adoption of one of the two alternative plans of apportionment that Weiser had presented to the three-judge panel, called Plan C. That order was stayed by the Supreme Court upon application of the Secretary of State. 404 U.S. 1065, 92 S.Ct. 750, 30 L.Ed.2d 775 (1972). On appeal, the Supreme Court affirmed the district court's finding of unconstitutionality of S.B. 1, the Texas legislative plan. It reversed the three-judge court's order adopting Plan C, however, because of that plan's deviation from the state policy embodied in S.B. 1. The Supreme Court noted that Plan B was constitutional, followed more closely the desires of the Texas legislature, and that, as between the two choices, Plan B should have been adopted rather than Plan C. The case was 'remanded for further proceedings consistent with this opinion.' 412 U.S. at 797, 93 S.Ct. at 2356.

On remand, appellants for the first time sought leave to intervene. Desiring to challenge the composition of one of the 24 districts included in the plan, they alleged a denial of equal protection and the right to vote to black citizens of that district, an issue not previously litigated in the suit. The district court ruled that the Supreme Court had effectively ordered the adoption of Plan B. In view of this, it denied the motion to intervene on the ground that, whether considered as an assertion of a right to intervene or only as a request for permissive intervention, the motion was untimely under Rule 24, F.R.Civ.P. The Secretary of State did not appeal the adoption of Plan B. Appellants having no standing to appeal the merits of the three-judge decision, filed concurrent appeals to this Court and to the Supreme Court from the denial of their intervention. The Supreme Court dismissed their appeal to that court 'for want of an appealable order.' Washington v. White, 416 U.S. 964, 94 S.Ct. 1985, 40 L.Ed.2d 554 (1974).

Direct appeals to the Supreme Court from a properly constituted three-judge court are under 28 U.S.C.A. 1253:

Except as otherwise provided by law, any party may appeal to the Supreme Court from an order granting or denying, after notice and hearing, an interlocutory or permanent injunction in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges.

The Supreme Court has not decided whether an unsuccessful applicant for intervention is 'any party' appealing an order of a three-judge court 'granting or denying' an injunction, as contemplated by 1253. Oregon State Elks Ass'n v. Falkenstein, 409 U.S. 1032, 1033, 93 S.Ct. 530, 34 L.Ed.2d 484 (1972) (Douglas, J., dissenting from denial of stay pending appeal), appeal dismissed, 409 U.S. 1099, 93 S.Ct. 907, 34 L.Ed.2d 681 (1973). This Court likewise has not decided the precise issue. But we have decided that some collateral matters dependent upon the injunction suit, which are not the actual grant or denial of an injunction, are appealable only to the Supreme Court. See Haining v. Roberts, supra. While the answer is far from clear, we think that the orderly process of judicial administration requires that any appeal from the denial of intervention by a properly constituted three-judge district court must be to the Supreme Court, and not this Court. The Eighth Circuit has reached this same conclusion. See Doe v. Turner, 488 F.2d 1134 (8th Cir. 1973) (dismissing appeal); Benson v. Beens, 456 F.2d 244 (8th Cir. 1972) (dismissing appeal). But see, Petuskey v. Rampton, 431 F.2d 378 (10th Cir. 1970), cert. denied, 401 U.S. 913, 91 S.Ct. 882, 27 L.Ed.2d 812 (1971).

The wisdom of this approach is clearly demonstrated by the situation in the instant case. The critical issue in deciding that intervenors' motion was untimely is whether the Supreme Court's decision and remand on the initial appeal mandated the adoption of Plan B, or whether the district court was free to consider any other plans which might then be offered. If the Supreme Court's decision effectively directed the adoption of Plan B, there is nothing to be achieved by allowing intervention by other parties. Denied intervention, they would be free later to litigate the issues asserted by them without the spectre of res judicata hanging over them. There could be no abuse of discretion by the district court. If, on the other hand, the question of what the ultimate plan should be still open after remand, it might be that intervenors could represent a different view that should have been considered by the district court. This might possibly result in an abuse of discretion in not allowing intervention, regardless of the timing.

For this Court to review the district court's decision for an abuse of discretion, we would be required to construe the mandate of the Supreme Court issued directly to the district court. Such procedure would subvert the settled principle that a mistake in construction of a mandate should ordinarily be corrected by the court which issued the mandate, In re Sanford Fork & Tool Co., 160 U.S. 247, 255, 16 S.Ct. 291, 40 L.Ed. 414 (1895), a principle the Supreme Court has gone to some length to enforce. See Utah Public Service Comm'n v. El Paso Natural Gas Co., 395 U.S. 464, 89 S.Ct. 1860, 23 L.Ed.2d 474 (1969).

An analogous direct appeal statute applies to certain antitrust cases.

In every civil action brought in any district court of the United States under any of said (antitrust) Acts, wherein the United States is complainant, an appeal from the final judgment of the district court will lie only to the Supreme Court.

15 U.S.C.A. 29.

In construing this statute, the Supreme Court, considering the policy behind the direct appeal procedure, has viewed its jurisdiction on direct appeal as being somewhat broader than the statute's language might seem to require. See, e.g., Tidewater Oil Co. v. United States, 409 U.S. 151, 93 S.Ct. 408, 34 L.Ed.2d 375 (1972) (findings the 'final judgment' of 15 U.S.C.A. 29 to include a 'controlling question' appealed under 28 U.S.C.A. 1292(b)); United States v. California Cooperative Canneries, 279 U.S. 553, 49 S.Ct. 423, 73 L.Ed. 838 (1929) (finding jurisdiction...