# Beryl N. Jones v. Caddo Parish School Board v. June Phillips, Movant-Appellant

> Court of Appeals for the Fifth Circuit · May 6, 1983 · 704 F.2d 206

URL: https://www.frixlaw.com/law-library/cases/9470483

## Case

- **Full name:** Beryl N. JONES, Et Al., Plaintiffs, v. CADDO PARISH SCHOOL BOARD, Et Al., Defendants-Appellees, v. June PHILLIPS, Movant-Appellant
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** May 6, 1983
- **Citations:** 704 F.2d 206; 36 Fed. R. Serv. 2d 587; 1983 U.S. App. LEXIS 28193
- **Precedential status:** Published
- **Opinion:** Dissent by Goldberg
- **Judges:** Goldberg, Williams, Garwood
- **Cited by:** 25 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9470483

## How later opinions describe it (automated extraction)

- finding that dismissal under Rule 41(b) requires that plaintiffs behave 4 of 8 egregiously

## Opinion text

GOLDBERG, Circuit Judge,
dissenting:
This is a ghost story, a tale better suited for campfires and dark, stormy nights than for the pages of the Federal Reporter. It is a story of a disembodied class of black students of Caddo Parish seeking vainly to vindicate their constitutional right to attend desegregated schools. It is a story of the Fifth Circuit, refusing to grant even a hearing to the proposed intervenor-class representative, acting more like a child whistling in the dark than a court of justice, afraid to look out the window and see if the mournful cries actually emanate from somebody or are just the products of a frightened imagination.
The judicial efforts to desegregate the Caddo Parish schools began some eighteen years ago. Despite the fact that the action was originally filed as a class action, and despite the fact that a group of potential intervenors sought to represent a class of black plaintiffs, no class has ever been certified. Accordingly, the black students and parents of the Caddo Parish schools, the phantom class haunting this lawsuit, have had to rely on surrogates to present their views. After the Justice Department and Caddo Parish negotiated a consent decree, appellant-intervenor June Phillips concluded that this virtual representation amounted to virtual neglect and attempted to intervene on behalf of the ghost class of black students and parents.
The trial court below denied the motion to intervene without even granting a hearing, because it determined from the pleadings that the motion was untimely and that the interests of the proposed intervenor were adequately represented by the Justice Department. The majority today holds that the request to intervene was so manifestly untimely that it did not merit that most fundamental procedural device, a hearing. It appears to me, however, that June Phillips has made claims that, if true, would show that her interests and the interests of the class she hopes to represent are not adequately represented by the Justice Department, and that her motion to intervene was timely. Accordingly, I conclude that Phillips deserves at least a hearing on her motion and I respectfully dissent.
I. INTRODUCTION
A. Factual and Procedural Background
I pause briefly to discuss the background of this case, not because I believe there is any shortcoming in the thorough and fair history presented in the majority opinion, but simply because some of the events that occurred have a hidden side that becomes visible when viewed from the perspective of the ghost class of black students and parents. Because the ruling that is the subject of this appeal is the denial of a hearing, I have no findings of fact to use in presenting this background. Accordingly, I will take an approach similar to that used when reviewing a motion for summary judgment and view the facts and inferences in the light most favorable to the appellant, Phillips.
The first inference I shall draw is that there exists within the confines of Caddo Parish a class of black students and parents desiring the maximal amount of desegregation required by law. Several factors support this modest assumption. First, Phillips herself claims she would represent such a class. Second, the suit was initially brought on behalf of such a class. Finally, parties purporting to represent such a class attempted to intervene in late 1973. Given the procedural posture of this appeal and the fact that never in the history of this lawsuit has the trial court held any kind of *225 hearing to determine the composition and interests of the plaintiff class, this first inference seems quite justified.
Viewed in the light of this modest assumption, the history of this case takes on an unpleasant character. The record shows three separate occasions when groups initially representing the interests of the phantom class changed their positions. The original named plaintiffs seemed at first to represent the interests of the phantom class. In mid-1973, however, the original named plaintiffs acquiesced in a “desegregation” plan that allowed the continued operation of thirty-four one-race or predominantly one-race schools. This was the first lapse in representation of the phantom class.
After this first lapse, additional named plaintiffs sought to intervene to press for more energetic desegregation. The trial court denied the motion for intervention and the would-be intervenors appealed to this Court. We ruled that the district court should have held a hearing on the intervention motion. Jones v. Caddo Parish School Board, 499 F.2d 914 (5th Cir.1974). Inexplicably, after their victory in this Court, the would-be intervenors did nothing. As the majority notes, “on remand, no hearing was sought or held.” This was the second lapse in representation.
There was still hope for the phantom class, however, because the Justice Department was still participating in the case. From the time the Justice Department entered the case in the mid-1960’s until early 1981, the Justice Department was undisputedly a vigorous advocate of the interests of the phantom class. The Justice Department consistently objected to excessive numbers of mostly one-race schools, premature declarations that the vestiges of segregation had been eliminated, and attempts to hinder desegregation of the faculty. In early 1981, however, the Justice Department apparently adopted a different approach to school desegregation cases and negotiated a consent decree that would leave forty-seven percent of the black students in one-race or predominantly one-race schools. 1 Once again, it seems that the representation of the interests of the phantom class has lapsed. Because representation of interests by the government is one of the key issues in this appeal, I will address this point at greater length below.
B. Issues on Appeal
This case is rife with disturbing issues. The most troubling aspect of the majority’s result is the fact that Phillips’ motion to intervene was denied without a hearing. 2 In the process of denying the appellant a hearing, the majority makes nominal obeisance to the many cases of this Circuit stating the clear necessity for a hearing. As we stated in Adams v. Baldwin County Board of Education, 628 F.2d 895, 897 (5th Cir.1980):
When parents move to intervene in school desegregation cases, the important *226 constitutional rights at stake demand a scrupulous regard for due process considerations, Jones v. Caddo Parish School Board, 499 F.2d 914 (5th Cir.1974). This Court has determined that intervention, rather than a separate action, is the proper vehicle for parents claiming inadequate representation to assert their rights. Denial of a plea in intervention, therefore, often will deprive those parties of their only opportunity to be heard. Consequently, we adhere to our earlier decisions requiring the district court to conduct an evidentiary hearing and to enter findings based upon an adequate record. Jones v. Caddo Parish School Board, 499 F.2d 914 (5th Cir.1974); Calhoun v. Cook, 487 F.2d 680 (5th Cir.1973). See also United States v. Perry County Board of Education, 567 F.2d 277 (5th Cir.1978).
The two cases upon which the majority relies to deny the motion without a hearing at most stand for the proposition that a hearing is not required when “it is more than clear that appellants are not entitled to intervene.” United States v. Perry County Board of Education, 567 F.2d 277, 280 (5th Cir.1978). See also United States v. Louisiana, 669 F.2d 314 (5th Cir.1982) (trial court denied NAACP’s motion to intervene, this Court remanded for hearing but none was held, and after four years of inactivity NAACP renewed its motion to intervene; no hearing on timeliness was necessary on those facts). Accordingly, I believe that the appellant’s burden to show that she was entitled to a hearing is minimal — I believe that under our cases she need establish only that it is not clear that she is not entitled to intervention. Stated positively, I believe that all Phillips must show to earn a hearing is a mere possibility that she is entitled to intervention.
Intervention of right under Fed.R.Civ.P. 24(a)(2) has four requirements: (1) the application must be timely; (2) the movant must have an interest in the case; (3) disposition of the case would impair the movant’s interest; (4) the movant’s interests are not adequately represented by the existing parties. The trial court denied intervention because the motion was not timely and because the movant’s interests were adequately represented by the Justice Department. The majority agreed that the motion was untimely, and so did not fully discuss the issue of adequacy of representation.
Because I disagree with the district court’s disposition of the motion, I must address both timeliness and adequacy of representation. Because the issue of timeliness “is at least partially linked to the question of adequate representation,” Piambino v. Bailey, 610 F.2d 1306, 1321 (5th Cir.), cert. denied, 449 U.S. 1011 , 101 S.Ct. 568 , 66 L.Ed.2d 469 (1980), I shall discuss adequacy of representation first, and then address timeliness.
II. ADEQUACY OF REPRESENTATION
It makes no sense to let a movant intervene if that movant will add nothing to the judicial process. Our adversarial system presumes that a party with a particular interest will put forth all reasonable arguments advancing that interest. These two principles together produce the idea that a movant may not intervene of right if his or her interests are adequately represented by the existing parties. In application this simple proposition becomes complicated. First, it is not always clear whether the various parties represent same interests. Second, to the extent the same interests are represented, that representation may not be adequate. Third, when the government is a party, the movant has a heavier burden in showing inadequacy of representation. I will address each of these points in turn.
A. Identity of Interests
The first step in determining adequacy of representation is to determine whether the interests of the movant are already represented by a party to the litigation. This is not a yes-no question. On occasion the answer may be clear, because the interests are either identical, as in the case of derivative rights, or totally adverse. A more .troubling case occurs when interests are similar. See 7A C. Wright & A. Miller, *227 Federal Practice and Procedure § 1909 (1972). Such appears to be the case here.
To determine the degree of similarity of interests, I must first, of course, determine what the various interests are. An interest could be defined broadly, such as an interest in fairness, or more narrowly, in terms of specific remedies.. Interests should not be defined broadly in seeking to measure adequacy of representation, because very often an intervenor is interested in the type of relief to be provided. Suppose two groups were both interested in school desegregation and both wanted to abolish de jure segregation, but one group wanted to institute a freedom of choice plan while the other group wanted busing. It would be ludicrous to claim that both groups had the same interests because both wanted desegregation. The only sensible analysis is that the two groups have different interests because their ultimate goals are different.
This Circuit has repeatedly held that different final objectives constitute different interests for the purpose of determining adequacy of representation. See Woolen v. Surtran Taxicabs, Inc., 684 F.2d 324, 333 (5th Cir.1982) (in antitrust suits when one group seeks injunctive relief and another group seeks damages, interests are different); International Tank Terminals v. M/V Acadia Forest, 579 F.2d 964 , 967 (5th Cir.1978) (quoting Commonwealth of Virginia v. Westinghouse Electric Corp., 542 F.2d 214, 216 (4th Cir.1976)) (identity of interest determined by “ultimate objective”); Cohn v. EEOC, 569 F.2d 909, 911 (5th Cir.1978) (interest of movant in reducing range of sanctions for contempt citation different from interest of EEOC in contesting contempt in first place).
Ironically, one of the clearest statements of this principal is Jones v. Caddo Parish School Board, 499 F.2d 914 (1974). In facts obviously similar to the present appeal, movants attempted to intervene representing a class of black plaintiffs who objected to the excessive number of predominantly one-race schools. The party-plaintiff, as I have mentioned, acquiesced in the committee plan. This Court stated that movants who claimed they “represent[ed] a class who desire the achievement of greater desegregation than is necessary to satisfy plaintiffs,” id. at 917 , should be given a hearing. That is both literally and' figuratively this case. The movant here desires a reduction in the number of one-race schools in Caddo Parish. The Justice Department, as evidenced by the consent decree, did not share that interest. Once again, we have in Caddo Parish “a class who desire the achievement of greater desegregation than is necessary to satisfy plaintiffs.” Once again, the case should be remanded for a hearing.
B. Adequacy of Representation
The second inquiry in determining adequacy of representation of interests is to determine adequacy. Whether a surrogate will adequately represent the interests of the movant of course depends in part on the identity of their interests. If the interests of the two groups are actually adverse, no amount of enthusiasm on the part of the party will constitute adequate representation. On the other hand, if the interests of the two groups appear to be identical, the surrogate’s representation will be adequate absent a showing of collusion, some adverse interest, or a failure to fulfill the ability of representation. See, e.g., United States v. United States Steel Corp., 548 F.2d 1232 (5th Cir.1977).
Again, the harder problems occur when interests are merely similar. In that case, the enthusiasm of the party may determine whether representation is adequate. If a party has interests similar to those of the movant, but is lackadaisical in presenting them, representation will not be adequate. See Liddell v. Caldwell, 546 F.2d 768 (8th Cir.1976), cert. denied, 433 U.S. 914 , 97 S.Ct. 2987 , 53 L.Ed.2d 1100 (1977) (inadequate representation because party had abandoned interest as evidenced by entry of consent decree); Nuesse v. Camp, 385 F.2d 694 , 704 n. 10 (D.C.Cir.1967) (“Of course, even where the interests of a person may have been adequately represented at trial, failure to take an appeal from an adverse *228 judgment may introduce the element of inadequacy, entitling the interested person to intervene after judgment to file an appeal.”) The Fifth Circuit took this position in United States v. Georgia, 428 F.2d 377 (5th Cir.1970), where intervention was allowed because the United States failed to appeal on an issue.
In this case the Justice Department evidenced an even more striking lack of enthusiasm. Though sharing with the movant a similar interest in reducing one-race schools, the Justice Department not only did not appeal from a result leaving forty-seven percent of the black students in Cad-do Parish in predominantly one-race schools, the Justice Department did not even contest that result at trial. Rather, the Justice Department willingly embraced that result as part of a consent decree it had itself negotiated. This is surely not sufficiently vigorous representation of the movant’s interest in reaching the maximum amount of desegregation possible. 3
C. Government as Party
Some cases hold that a movant has a greater burden when attempting to show that the government is an inadequate representative of the movant’s interests. See C. Wright & A. Miller, supra, § 1909, at 528 n. 85. This requirement, however, does not impose any qualitatively different burden when the government is a party. “It means only that there must be a concrete showing of circumstances in the particular case that make the representation inadequate.” Id. at 529. Thus, a mere claim to intervene to represent the black community’s interest in desegregation would probably not be adequate if the Justice Department were in the case. See, e.g., United States v. Carroll County Board of Education, 427 F.2d 141 (5th Cir.1970).
In this case, however, the movant has indeed alleged circumstances that would concretely show inadequacy of representation. Phillips has claimed an interest in a greater degree of desegregation than the Justice Department desired. An interest in a different sort of remedy from that the government desires is sufficient to support intervention of right. Cohn v. EEOC, supra. Phillips has also claimed a greater degree of enthusiasm than the government showed in negotiating this consent decree. A willingness to press a claim more vigorously than the government is also sufficient to show inadequacy and support intervention of right. United States v. Georgia, supra.
D. Conclusion on Adequacy
Phillips was denied intervention in part because the trial court thought her interests were adequately represented by the government. But the government was willing to leave forty-seven percent of the black students in Caddo Parish in predominantly one-race schools. Phillips has a different interest from the Justice Department at least to the extent that the Justice Department can accept that fact and Phillips cannot. Furthermore, the government is so content with that result that it did not even contest it with a trial, much less an appeal. *229 Thus, at least to some degree it appears that Phillips’ interests were not adequately represented. Whether or not Phillips has established inadequacy as a matter of law, she certainly has alleged facts that if true, would show inadequacy. She deserves a hearing on her contentions. Due process can tolerate no less than that.
III. TIMELINESS
A motion to intervene must be timely, Fed.R.Civ.P. 24, and a determination of timeliness is within the discretion of the trial court, to be reversed only for an abuse of discretion. NAACP v. New York, 413 U.S. 345, 366 , 93 S.Ct. 2591, 2603 , 37 L.Ed.2d 648 (1973). The trial court found, and the majority agreed, that Phillips’ motion was untimely on its face, so that no hearing need have been held. My examination of the authorities in this Circuit convinces me that Phillips has alleged circumstances that would, if true, make her motion timely. Accordingly, I believe the motion to intervene should be remanded for a hearing on the issue of timeliness.
A. Majority Opinion
My basic disagreement with the majority opinion is simple but fundamental: I believe the majority fundamentally misunderstands the opinion of this Court in Stallworth v. Monsanto Co., 558 F.2d 257 (5th Cir.1977) (per Clark, C.J.). The majority states “[a]s established in Stallworth, id. [at 264], and [United States v. Marion County, 590 F.2d 146, 149 (5th Cir.1979)], the relevant time period for gauging the timeliness of an application for intervention begins when the proposed intervenor knew or should have known of his or her interest in the case.” Majority Opinion, at 220. The majority concludes that given the long history of the case, the publicity surrounding the consent decree negotiations and Phillips’ involvement in the negotiations, Phillips should have known of her interest in the case long before she moved to intervene.
B. Stallworth and Progeny
As I read Stallworth , the clock does not start running on timeliness until the proposed intervenor knows or reasonably should know that intervention is necessary to protect the intervenor’s interests. To be ' fair to the majority, Stallworth does use the phrase “know or reasonably should have known about his interest in the case.” E.g., 558 F.2d at 264 , id. at 265 . The Stallworth Court, however, was principally concerned with rejecting the idea that time starts running when the movant knows or should know of the pendency of the action. Stall-worth did not explicitly distinguish between the time the movant became aware of an interest and the time the movant became aware of an inadequately represented interest. Nonetheless, the rationale Stallworth uses to reject the first position also serves to reject the majority’s position.
Stallworth itself plainly supports my reading. Stallworth was originally filed by black plaintiffs employed by Monsanto Co., complaining that Monsanto’s seniority system was racially discriminatory. The suit resulted in part in a consent decree restructuring seniority. When the consent decree was implemented, white employees were relatively reduced in seniority and moved to intervene to protect their seniority. The district court denied the motion because it “found that the appellants must have known of the pendency of the lawsuit at some unspecified time prior to the date on which they had filed their petition.” Id. at 262 . This Court reversed, holding that the relevant time to begin counting was when the decree was implemented and the white employees were adversely affected, rather than when they should have known of the pendency of the lawsuit.
First, the Court noted that NAACP v. New York, 413 U.S. 345 , 93 S.Ct. 2591 , 37 L.Ed.2d 648 (1973), did not “require that the date on which the would-be intervenor became aware of the pendency of the action ... be considered for the purpose of determining whether he acted promptly.” Stall-worth, 558 F.2d at 264 . Second, the Court relied on language in United Airlines v. *230 McDonald, 432 U.S. 385, 394 , 97 S.Ct. 2464, 2469 , 53 L.Ed.2d 423 (1977), measuring timeliness from the time a would-be intervenor in a class action “became aware that her interests ‘would no longer be protected by the named representatives’ rather than when she learned that the lawsuit was pending.” Stallworth, 558 F.2d at 264 .
Finally, the court made the following policy argument:
Third, a rule making knowledge of the pendency of the litigation the critical event would be unsound because it would induce both too much and too little intervention. It would encourage individuals to seek intervention at a time when they ordinarily can possess only a small amount of information concerning the character and potential ramifications of the lawsuit, and when the probability that they will misjudge the need for intervention is correspondingly high. Often the protective step of seeking intervention will later prove to have been unnecessary, and the result will be needless prejudice to the existing parties and the would-be intervenor if his motion is granted, and purposeless appeals if his motion is denied. In either event, scarce judicial resources would be squandered, and the litigation costs of the parties would be increased. Such a rule would also mean that many individuals who excusably failed to appreciate the significance of a suit at the time it was filed would be barred from intervening to protect their interests when its importance became apparent to them later on. These effects would be inconsistent with two important purposes of Rule 24: to foster economy of judicial administration and to protect nonparties from having their interests adversely affected by litigation conducted without their participation. Therefore, the time that the would-be intervenor first became aware of the pendency of the case is not relevant to the issue of whether his application was timely.
Id. at 264-65 . 4
Clearly, then, Stallworth contemplated measuring time from the point when the intervenor first became aware that his or her interests were inadequately represented. First, the language from United Airlines explicitly starts timing from the point of knowledge of inadequate representation. Second, the policy argument makes sense only if timing starts when the movant becomes aware of inadequate representation of its views. That argument criticizes a rule under which “[o]ften the protective step of seeking intervention will later prove to have been unnecessary.” Id. at 265. Certainly intervention when the movant’s interests are adequately represented is unnecessary, and Stallworth cannot be read as advocating that.
I am not the first person to read Stall-worth in this manner. In Piambino v. Bailey, 610 F.2d 1306 (5th Cir.), cert. denied, 449 U.S. 1011 , 101 S.Ct. 568 , 66 L.Ed.2d 469 (1980), this Court addressed precisely the question before this panel. In considering the first Stallworth factor in determining timeliness, the Piambino Court stated:
Furthermore, the question of timeliness is at least partially linked to the question of adequate representation. See United Airlines, Inc. v. McDonald, 432 U.S. 385, 394 , 97 S.Ct. 2464, 2470 , 53 L.Ed.2d 423 (1977) (“as soon as it became clear to the [intervenor] that the interests of the unnamed class members would no longer be protected by the named class representatives, she promptly moved to intervene to protect those interests”); Allegheny Corp. v. Kirby, 344 F.2d 571 , 574 (2d Cir.1965) (timeliness also turns on “when the interests of the proposed intervenors were no longer properly represented”) (construing pre-1966 rule).
*231 Id. at 1321. Later the Piambino Court applied its reading of Stallworth to the facts of its case:
Each of the Stallworth factors on timeliness points toward the conclusion that the application was timely. First, although the [movant] knew as early as June 30, 1976, when the injunction issued, that he had an interest in the litigation that might be impaired, there was absolutely no reason for him to intervene at that time. [Defendant] immediately appealed and filed a sterling brief with this Court. In addition, [defendant’s] attorneys met on several occasions with the [movant and others] and assured those people that they were prosecuting the appeal diligently and in good faith. In reliance upon those representations, and upon the obvious adequate representation of [defendant’s] attorneys, . .. [movant] did not attempt to intervene. On January 28, 1977, when the settlement agreement was filed, [movant] then knew that his interests were no longer adequately represented by [defendant], and his motion to intervene was filed on February 14. This delay of a mere seventeen days cannot rationally be denominated as unreasonable.
Id. at 1324-25 (footnote omitted). If Stall-worth itself were not plain enough, Piambino , a precedent binding on this panel, makes it indisputably clear that timeliness is measured from the time the movant became aware that the original parties did not adequately represent the movant’s interest in the lawsuit. Given the majority’s awareness that Piambino establishes the principle that timeliness depends on when a movant became aware of inadequate representation of its interests, Majority Opinion at 34,1 am astonished that it applied a contrary legal rule. 5
C. Phillips’ Motion and Timeliness
The last question regarding timeliness is whether Phillips’ motion could have been timely under Stallworth and Piambino . Phillips claims that she was unaware that the Justice Department inadequately represented her interests until publication of the consent decree. If that is true, Phillips’ motion was plainly timely. The appellees and the majority base their view of timeliness on the fact that Phillips was aware of, and had even participated in the negotiation of, the consent decree, and so should have been apprised of its contents earlier. That argument is unpersuasive. First, the fact of Phillips’ awareness of negotiations does not imply that she ever knew of the government’s position. Second, even if she did know of the government’s initial position, it might not have occurred to her at that time that the government would soften its position and accede to a settlement leaving forty-seven percent of the black Caddo Parish students in predominantly one-race schools. The majority suggests that this result was simply the product of the normal give and take of negotiation. Phillips suggests that it resulted from a change in Justice Department policy initiated after the change in administrations. 6 The cause underlying this result is irrelevant to the issue of timeliness. The only relevant question is when Phillips knew or should have known that the Justice Department might accept such a result, when Phillips knew or should have known that her interests were inadequately represented. I see no way that this question can be determined on the record before us. Accordingly, the district court should be instructed to hold a hearing and make factual findings on when Phillips *232 knew or should have known that her interests were inadequately represented.
CONCLUSION
This ghost story, begun almost eighteen years ago, now draws to a mournful close. The ghost class of black school-children, the very people most vitally concerned with the vigorous defense of their constitutional rights, are not to be heard, for this final chapter of the story buries the case. In spite of three times having had their surrogate representatives change positions and acquiesce in resolutions repugnant to the ghost class, they are told their interests were adequately represented. In spite of moving to intervene within a few days of having learned of this last and most recent change in policy by the surrogate representative, the ghost class are told that their motion was not timely. This is truly a story that will scare small children.
Even worse, this is a story that will scare grown-up judges, lawyers, and citizens concerned with due process of law. Despite the long line of cases of this Circuit holding that a hearing on a motion to intervene is a fundamental measure plainly required in order to afford due process of law, Phillips’ motion to intervene was denied without even granting her a hearing to support the findings of the district court. Unlike the majority and the district court, I do not believe that it is “more than clear” that Phillips’ motion should be denied.
I would remand this case to the district court and direct it to hold a hearing and make findings of fact and conclusions of law. First, the court should determine whether the Justice Department adequately represented Phillips’ interest in reducing the number of predominantly one-race schools substantially below the level reached in the consent decree. Such inadequacy could be shown by evidence that the Justice Department thought that the present level was sufficient, or that it did not value the case highly enough to press it to trial, or that the accoutrements of further desegregation, such as busing, violated the Justice Department’s current enforcement approach. Second, if the Justice Department were found to have inadequately represented Phillips’ interests for these or any other reasons, the court should determine when Phillips knew or should have known of that inadequacy and then determine timeliness accordingly.
The majority disagrees with me and sees nothing objectionable in this case. That fact does not anger me so much as frighten me. It has been many days since I first became apprised of this result, and it still gives me chills, even in broad daylight. I fervently hope it will be far off in the future on a dark, stormy night before I read another tale of the macabre as disturbing as this one.
. There is some dispute over this figure, but given the procedural posture of the case I must accept Phillips’ contention.
. There are two other items that trouble me enough that I must at least allude to them. First is the majority’s treatment of the class status of this action. This case was filed as a class action at a time when certification was not required. That would seem initially to qualify this case as a class action. Furthermore, on the last appeal to this court, Jones v. Caddo Parish School Bd., 499 F.2d 914 (5th Cir.1974), the case was plainly held to be a class action. Thus, notwithstanding any retroactive application of the 1966 amendments to the Federal Rules of Civil Procedure, the law of the case demands that this case be treated as a class action. If the case were a class action, I have serious doubts that Fed.R.Civ.P. 23(e), calling for notice to the class before dismissal, does not apply as the majority holds it does not.
Second, as a judge of this Court, I am greatly distressed to see a mandate of this Court calling for a remand to determine the nature and composition of the plaintiff class, id., ignored by judge and litigants alike. Even if the victorious appellants did not act, I think the judge had some duty after the mandate to ensure that the named class representatives actually represented the class.
I do not belabor those points now because I believe that merely holding a hearing on intervention, which the majority also denies, would suffice to cure these other ills.
. The majority cites Hines v. Rapides Parish School Board, 479 F.2d 762 (5th Cir.1973), as establishing the definitive test for adequacy of representation. The majority relies on the following language:
If the court determined that the issues [the proposed intervenors] sought to present had been previously determined or if it found that the parties in the original action were aware of those issues and completely competent to represent the interests of the new group, it could deny intervention.
Id. at 765 . The majority notes that the parties were aware of the problem of one-race schools and discussed it, and concludes that it is unlikely that the movant could show inadequacy.
I believe that the majority misinterprets Hines . First, Fed.R.Civ.P. 24(a)(2) does not include any special test for school cases. The basic standard for adequacy in school cases is the same as in all others. Hines does not purport to be doing anything quite as radical as creating a separate standard. No argument for that is given,- nor are any cases cited. Hines merely summarizes in general terms the requirements for intervention. The first leg of Hines merely requires that the motion be timely; the second leg of Hines restates the requirement of adequacy. If anything, Hines strengthens the adequacy requirement by requiring that the parties be “completely competent” to represent the interests of the movant.
. Stallworth goes on to describe three other factors to be used in determining timeliness, Stallworth, 558 F.2d at 265-66 , and then lists a factor that should be ignored, id. at 266: any “absolute” measure of timeliness, such as how far the litigation has progressed when intervention is sought. I am interested to note that the majority places great rhetorical weight on this verboten factor.
. The only other case cited by the majority on this point certainly does not conflict with the law established by Stallworth and Piambino. United States v. Marion County, 590 F.2d 146 (5th Cir.1979), involved an attempt to intervene to contest a consent decree some four years after it had been implemented. The movant • there had had four years to discover its interests were inadequately represented by the parties.
. I certainly do not suggest that the Reagan administration was not entitled to alter its enforcement policies in school desegregation cases. I merely observe that such a shift may justify intervention by people whose views were previously adequately represented by the Justice Department.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9470483. Public record. Not legal advice.