Opinion · Court of Appeals for the Fifth Circuit
United States of America, Treavor Brown and Tremaine Brown, Intervening v. State of Louisiana
United States, Treavor Brown & Tremaine Brown, Intervening v. State of La., 669 F.2d 314 (5th Cir. 1982)
- Type
- Opinion
- Court
- Court of Appeals for the Fifth Circuit
- Jurisdiction
- Federal
- Date
- 1982-03-05
- Topic
- general
How later courts describe this case
- application of abuse of discretion review for timeliness determination on second motion where proposed intervenor failed to argue for first motion after remand
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UNITED STATES v. STATE OF LA.,669 F.2d 314(5th Cir. 1982)
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, TREAVOR BROWN AND TREMAINE
BROWN, ET AL., INTERVENING PLAINTIFFS-APPELLANTS, v. STATE OF LOUISIANA, ET
AL., DEFENDANTS-APPELLEES.
No. 81-3372.
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
March 5, 1982.
Kendall L. Vick, New Orleans, La., for State of La.
Taylor, Porter, Brooks Phillips, Nancy C. Tyler, W. Shelby McKenzie, Baton Rouge, La., for La. St. Univ. and Agric. Mech. College.
Barham Churchill, Mack E. Barham, Charles F. Thensted, Martin Feldman, New Orleans, La., for La. St. Bd. of Regents.Page 315
William R. Yeomans, Civ. Rt. Div., Appellate Sect., Dept. of Justice, Washington, D.C., for plaintiff-appellee.
C. A. Calloway, Baton Rouge, La., for Grambling State Univ. Alumni.
Before GEE, GARZA and TATE, Circuit Judges.
[2] Little activity ensued in the case thereafter, and the NAACP never reurged the motion for intervention but instead monitored the case as amicus curiae. About a year ago, when at last the case appeared to be moving toward trial, however, the NAACP filed a second motion to intervene. The three-judge court, again without according a hearing, denied this motion as well.90 F.R.D. 358. The panel concluded that the proposed intervenor did not meet the requirements of Rule24(a), Federal Rules of Civil Procedure, for intervention as of right because the motion was untimely, because the United States was adequately representing its interests, and because the NAACP had other means of protecting its rights. Because of the NAACP's long delay in reurging a right to intervention and because it was not clear that the proposed intervenors were the same as those who moved for intervention in 1974, the panel did not believe that the 1976 remand order was binding on it. As a general proposition, the timeliness of an application for intervention is an issue that addresses the discretion of the district court, and its determination will not be overturned on appeal unless an abuse of that discretion is shown.Stallworth v. Monsanto Co.,558 F.2d 257,263(5th Cir. 1977). We cannot say, in view of the NAACP's great and undisputed delay — over four years — in advancing the second motion that the order denying it was such an abuse. Nor was a hearing needed in such circumstances.
[3] As for the remand order's direction to hold such a hearing, insofar as an appellate direction in connection with the remand of an appeal from an interlocutory order may properly be viewed as law of the case, we do not view it as binding on the panel. Unlike res judicata, law of the case does not bar consideration of matters that could have been but were not resolved in the earlier proceeding to which it refers.Signal Oil Gas Co. v.Barge W-701,654 F.2d 1164,1169(5th Cir. 1981). The delay of over four years that ensued between our remand and the filing of the NAACP's second motion to intervene — itself an adequate and sufficient ground for its denial — not only was not, but could not have been, considered by either the district court or by our panel in their earlier meetings. The order of the district court denying intervention is
[4] AFFIRMED.Page 316