Petition — Garry Weber v. Benny B. Barrett

'

| Supreme Court, U. S.

FILe

80-849 NOV 24 1980

In The

Supreme Court of the United States

OCTOBER TERM, 1980

Garry WEBER, ET AL.,

Petitioners,

v.

BENNY B. BARRETT,

Respondent. °

_

i

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH DISTRICT

_

—_

Law Orrices or EARL LUNA

EArt LUNA

2416 LTV Tower

1525 Elm Street

Dallas, Texas 75201

(214) 747-1582

Attorney for Petitioners

EE

QUESTION PRESENTED FOR REVIEW

WHETHER ONE MAY RECOVER ATTORNEY’S

FEES ON APPEAL UNDER 42 U.S.C. § 1988 AGAINST

PETITIONERS WHO WERE NEVER PARTIES TO

THE CIVIL RIGHTS SUIT BUT UNSUCCESSFULLY

ATTEMPTED TO INTERVENE.

INDEX

Page

Opinions Below ..................::ccccccccecessteeeseesseeeeneneenneeeneneanien 2

I SS TTT TTT 2

Question Presented for Review ...............:cc cette 2

5. csnecinosrvorvnsnrsssnsosesnnesnsnensvesesune 3

Statement of the Case 0.0.0.0... ANC ep AOR ED 3

Reason for Gramting Writ ....................:::c:cccccsceeeeeeeeneenenees 4

Neen ceseseiyesesssavriearsansdnasseomrereussneneones 7

ccs sc ksecikstiserselesveronbpssnnaceeovents 8

Appendix

live senasestnesnovescsasnesees A-1

Unpublished Opinion of the Court of Appeals

Allowing Attorney fees on Appeal of the

Denial of Intervention; Order of the Court

of Appeals Denying Rehearing En Banc .................... B-5

Order of Single Judge of Court of Appeals

Granting Attorney’s Fees on Appeal; Order

of the Court of Appeals Setting Aside Order

LE EE C-2

Unpublished Opinion of the Court of Appeals

Affirming the Denial of Intervention ......................... D-3

Order of the District Court Denying

Nr ccvesecesepvrevecesetocoscarence eee E-4

li

TABLE OF AUTHORITIES

CASES

Page

Brown v. Culpepper, 559 F.2d 274 (5th Cir. 1979) ............ 6

Criterion Club of Albany v. Board of

Commissioners, 594 F.2d 118 (5th Cir. 1979) ................ 6

Hanrahan v. Hampton, 48 LW 3780, 100 S.Ct. 1987

I Soo Aa tte cackesetrns eeeinacatinns aad a rere eee . 5

Iraniar. Students Ass’n v. Edwards, 604 F.2d 352

MINN, GUI ictal eames hee 6

Statutes

ee I So ceises cottage niece aekaeen 3

pe SRAM a CONTIG ee ME et 3, 4, 5,6

In The

Supreme Court of the United States

OCTOBER TERM, 19%.

Garry WeEpER, Et AL.,

Petitioners,

Benny B. Barrett,

Respondent.

eo

-

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

”—

>_>

Your Petitioners’ respectfully pray that a writ of cer-

tiorari issue to review the judgment of the United States

Court of Appeals for the Fifth Circuit, entered in the above

entitled cause on July 17, 1980.

1The Petitioners are Dallas County, County Judge Garry Weber,

County Commissioner Jim Jackson, County Commissioner Nancy

Judy, County Commissioner Jim Tyson, and County Commissioner

Roy Orr, comprising the Commissioners Court of Dallas County,

the governing body of Dallas County, Texas. The Respondent is

Benny B. Barrett, a former deputy sheriff of Dallas County.

2

OPINIONS BELOW

A copy of the unpublished opinion of the United States

Court of Appeals for the Fifth Circuit is attached hereto in

Appendix B allowing Respondent attorney fees on appeal of

the denial of intervention. Also attached in Appendix B is

a copy of the Fifth Circuit’s Order denying a rehearing

en banc.

A copy of an Order of a single judge of the Fifth Circuit

filed May 12, 1980, granting attorney’s fees on appeal and

copy of the Fifth Circuit Order filed June 19, 1980, setting

aside the May 12, 1980, Order of the single judge are

attached hereto in Appendix C.

A copy of the unpublished opinion of the United States

Court of Appeals for the Fifth Circuit affirming the denial

of intervention by the United States District Court for the

Northern District of Texas is attached hereto in Appendix D.

A copy of the United States District Court’s Order deny-

ing Petitioners’ intervention is attached hereto in Appen-

dix E.

GROUNDS FOR JURISDICTION

The judgment sought to be reviewed was entered by the

United States Court of Appeals for the Fifth Circuit on

July 17, 1980, and Petitioners’ Motion for Rehearing En

Banc was denied September 5, 1980. This petition for cer-

tiorari was filed within ninety days of that date.

This Court’s jurisdiction is invoked under 28 U.S.C.

§ 1254(1).

QUESTION PRESENTED FOR REVIEW

WHETHER ONE MAY RECOVER ATTORNEY’S

FEES ON APPEAL UNDER 42 U.S.C. § 1988 AGAINST

PETITIONERS WHO WERE NEVER PARTIES TO

3

THE CIVIL RIGHTS SUIT BUT UNSUCCESSFULLY

ATTEMPTED TO INTERVENE.

STATUTES INVOLVED

42 U.S.C. § 1988.

This statute is set forth in Appendix A.

STATEMENT OF THE CASE

Benny B. Barrett, Respondent, filed a 42 U.S.C. § 1983

civil rights suit against Carl Thomas in the United States

District Court for the Northern District of Texas, claiming

that Carl Thomas, Sheriff of Dallas County, Texas, fired

him for political reasons. Respondent not only did not sue

Petitioners in the civil rights case, he successfully opposed

their attempted intervention in the civil rights suit he had

filed against Thomas.

Petitioners appealed the denial of intervention to the

United States Court of Appeals for the Fifth Circuit. That

Court affirmed the District Court judgment denying inter-

vention. (Appendix D).

Respondent tiled a motion for attorney fees on appeal,

based on his being the “prevailing party on appeal”, even

though Respondent had not sued Petitioners in the civil

rights case and successfully opposed their attempted inter-

vention as parties in said suit.

On May 12, 1980, a single Judge granted the motion for

attorney’s fees and remanded same to the trial court to

determine the amount of the fees. (Appendix C). Upon

motion of Petitioners, the Order of May 12, 1980, was set

aside on the ground that it was a matter properly to be

considered by the entire panel. (Appendix C).

A Panel for the United States Court of Appeals for the

Fifth Circuit granted said motion and remanded the cause

4

to the trial court to determine the amount of attorney’s

fees. (Appendix B).

Petitioners filed a motion for a rehearing en banc and

same was denied on September 5, 1980. (Appendix B).

42 U.S.C. §1988 provides in the final sentence that:

“In any action or proceeding to enforce a provision of

sections 1981, 1982, 1983, 1985 and 1986 of this title

.... the court, in its discretion, may allow the prevailing

party, other than the United States, a reasonable attor-

ney’s fee as a part of the costs.”

The Fifth Circuit noted that Respondent was “a clear

and undisputed winner” on appeal and that Petitioners were

“not prevailing parties” under 42 U.S.C. § 1983. Since, there-

fore, Respondent prevailed on his underlying claim against

Thomas and part of this attorney’s time was spent in pre-

venting the judgment against Thomas from being derailed

as a result of the attempts to intervene, Petitioners cannot

be “ ... excused from the burden of these costs simply

because we did not hold they were liable for the judgment

on the merits against Sheriff Thomas, an issue never raised

or considered by the trial court.”

The Court allowed the attorney fees to the winner of an

appeal from the denial of an intervention even though the

“clear and undisputed winner” has never prevailed on the

merits of any Civil Rights claim against the Petitioners.

The results of the Fifth Circuit action is to permit one to

recover attorney fees under 42 U.S.C. § 1988 from those

who were not sued under either section 1981, 1982, 1983,

1985 or 1986 of 42 U.S.C.

REASON FOR GRANTING WRIT

The Court should grant a review on writ of certiorari

of the judgment of the United States Court of Appeals for

5

the Fifth Circuit because that decision is in conflict with the

decision of this Court construing the terms of a Federal

statute.

Direct Conflict With a Decision of This Court

Construing A Federal Statute.

The decision of the Court of Appeals for the Fifth Circuit

in this case conflicts with the per curiam decision of this

Court in Hanrahan v. Hampton, 48 LW 3780, 100 S.Ct. 1987

(1980) , construing 42 U.S.C. § 1988, as well as the cases cited

therein.

The usual rule in this country that each party is to

bear the expense of his own attorney is departed from by

42 U.S.C. § 1988. Where a prevailing plaintiff is awarded

attorney’s fees under this statute, we are dealing with cir-

cumstances where fees are awarded against a violator of

federal law. Petitioners not only were not found to be vio-

lators of federal law, the Plaintiff (Respondent) did not

even make a claim against them. Therefore, it could hardly

be said that Respondent prevailed on the merits of a civil

rights claim against Petitioners. Respondent did prevail in

the Fifth Circuit appeal affirming the District Court’s refusal

to permit Petitioners to intervene.

This Court made it clear in Hanrahan v. Hampton, 48

LW 3780, 100 S.Ct. 1987 (1980), that 42 U.S.C. §1988, by its

terms, permits an award of attorney fees only to a “pre-

vailing party” and that the Court of Appeals was authorized

to award respondents the attorney’s fees attributable to

their appeal only if by reason of obtaining a partial reversal

of the trial court’s judgment, they prevailed within the

meaning of § 1988. The Appeals Court, therefore, could only

award attorney’s fees to Respondent Barrett if by obtaining

an affirmance of the trial court’s judgment denying Peti-

tioners attempted intervention, he prevailed within the

*-*»

6

meaning of § 1988. The Court concluded in Hanrahan, supra,

that while respondents did prevail on matters in the sense

that the Court of Appeals overturned several rulings against

them by the District Court, they were not prevailing parties

in the sense intended by 42 U.S.C. § 1988, as amended.

Respondent Barrett prevailed in the sense that the District

Court judgment denying the intervention was affirmed. As

the Circuit Court put it:

“On the issue before us on appeal, there was a clear

and undisputed winner: the appellee.”

But he was not a “prevailing party” in the sense intended by

42 U.S.C. § 1988. The Respondent did not make a civil rights

claim against Petitioners and did not want them in the

civil rights suit he had filed against Carl Thomas. In Han-

rahan, supra, the respondents had not prevailed on the

merits of any of their civil rights claims, the favorable rulings

in the Court of Appeals were not matters on which a party

could “prevail” for the purposes of shifting his counsel fees

to the opposing party under § 1988.

Respondent Barrett and the Circuit Court erroneously

took the position that since he had prevailed against one

party (Thomas), he was entitled to an award of attorney

fees against Petitioners since their intervention, if successful,

could have damaged or “derailed” his judgment against

Thomas.

The Circuit Court cited Iranian Students Ass’n v. Ed-

wards, 604 F.2d 352 (5th Cir. 1979); Criterion Club of

Albany v. Board of Commissioners, 594 F.2d 118 (5th Cir.

1979) ; and Brown v. Culpepper, 559 F.2d 274 (5th Cir. 1977)

as authority for allowing the attorney fees. An examination

of those cases reveals that neither of them involved facts

where there was no prevailing party on the merits of a civil

7

rights claim as existed in Hanrahan, supra, and the case at

bar. Although Petitioners relied on Hanrahan, supra, the

Circuit Court failed to cite it in the opinion. Recognizing

that attorney fees are not allowed “where the procedural

issue is merely a question raised on the way to the main

issue” and further recognizing that this appeal was a pro-

cedural one, the right to intervene, the Court observed

that “If the Appellants had prevailed on appeal, Barrett’s

substantive judgment would have been imperiled. The out-

come on appeal was not interlocutory interpretation but a

final judgment on the question presented.” Yet, it did not

constitute a final judgment where Respondent recovered

on the merits of a civil rights claim against Petitioners.

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the judgment and opinion of the Fifth Circuit.

Respectfully submitted,

ARL LuNA °

2416 LTV Tower

1525 Elm Street

Dallas, Texas 75201

(214) 747-1582

Attorney for Petitioners

8

PROOF OF SERVICE

STATE OF TEXAS

County OF DALLAS

Before me, the undersigned Notary Public in and for

Dallas County, Texas, on this day personally appeared

Ear Luna, who being by me duly sworn upon oath stated:

I, Eart Luna, am a member of the Bar of the Supreme

Court of the United States and have been the attorney of

record for petitioners herein in all proceedings had in the

Courts below. nm

I further state upon oath that upon the*? day of

November, 1980, I served copies of the foregoing Petition

for Writ of Certiorari on the Respondent, Benny B. Barrett,

by depositing the same in the United States Mail, with

first class postage prepaid, addressed to the following counsel

of record in the Courts below, at the address indicated to-

wit: Mr. James C. Barber, 318 Merchants State Bank

Building, 5217 Ross Avenue, ry VG oe

Earl Luna

SUBSCRIBED AND SworN TO before me by the said EARL

Luna, this theo “day of Nov

APPENDIX

A-1

APPENDIX A

42 U.S.C. § 1988. Proceedings in vindication of civil rights

The jurisdiction in civil and criminal matters conferred

on the district courts by the provisions of this chapter and

Title 18, for the protection of all persons in the United

States in their civil rights, and for their vindication, shall be

exercised and enforced in conformity with the laws of the

United Staies, so far as such laws are suitable to carry the

same into effect; but in all cases where they are not adapted

to the object, or are deficient in the provisions necessary to

furnish suitable remedies and punish offenses against law,

the common law, as modified and changed by the constitution

and statutes of the State wherein the court having jurisdic-

tion of such civil or criminal cause is held, so far as the same

is not inconsistent with the Constitution and laws of the

United States, shall be extended to and govern the said

courts in the trial and disposition of the cause, and, if it is

of a criminal nature, in the infliction of punishment on the

party found guilty. In any action or proceeding to enforce

a provision of sections 1981, 1982, 1983, 1985, and 1986 of

this title, title [IX of Public Law 92-318, or in any civil action

or proceeding, by or on behalf of the United States of

America, to enforce, or charging a violation of, a provision

of the United States Internal Revenue Code, or title VI of

the Civil Rights Act of 1964, the court, in its discretion, may

allow the prevailing party, other than the United States, a

reasonable attorney’s fee as part of the costs.

As amended Pub.L. 94-559, § 2, Oct. 19, 1976, 90 Stat. 2641.

B-1

In The

United States Court of Appeals

FOR THE FIFTH CIRCUIT

in

No. 879-2183

_

Benny B. BARRETT,

Plaintiff-Appellee,

versus

Cart THomas, Sheriff,

Defendant-Appellee,

County JupDGE GARRY WEBER,

ET AL.,

Movants-Appellants.

-

Appeal from the United States District Court

for the Northern District of Texas

te

ON MOTION FOR ATTORNEY’S FEES

Before Grg, RuBIN AND Po irz, Circuit Judges.

Rustin, Circuit Judge.

The issue on appeal was whether the trial court had erred

in denying appellants the right to intervene. This court

affirmed the trial court’s decision. The appellee is clearly the

prevailing party. The appellants develop an interesting and

complicated syllogism: the opinion makes it clear that there

was no need for the intervention, hence the intervenor is

protected; therefore, the intervenor prevailed. The argument

rests on an erroneous premise: that victory is to be deter-

mined esoterically on the basis of whether the ultimate effect

of a decision is subjectively pleasing to the litigant. We must

proceed on a more pragmatic basis: we look to the issues

B-2

presented and consider whether the party who presented

them prevailed in whole or in part. On the issue before us

on appeal, there was a clear and undisputed winner: the

appellee. The mere fact that appellants have been comforted

to some degree by learning that they will not be made liable

without first being given an opportunity to defend themselves

does not make them “prevailing parties” under 42 U.S.C.

§ 1988.

Appellee has prevailed on his underlying claim against

defendant Sheriff Thomas. Part of the cost involved in so

prevailing was the devotion of his attorney’s time and effort

in successfully preventing the initial judgment against

Thomas from being derailed as a result of appellants’ at-

tempts to intervene. Appellants cannot now be excused from

bearing the burden of these costs simply because we did not

hold they were liable for the judgment on the merits against

Sheriff Thomas, an issue never raised or considered by the

trial court.

Appellants have argued that the effect of the trial court’s

denial of intervention was that “they (appellants) never

became parties to the proceedings.” It is correct that, in

Weiser v. White, 505 F.2d 912, 918 (5th Cir.), cert. denied,

421 U.S. 993, 95 S.Ct. 1998, 44 L.Ed.2d 482 (1975), we

refused to assess costs because we never had the jurisdiction

necessary to order the payment of attorney’s fees. However,

that case involved an attempt to appeai two separate orders

of a three-judge court denying intervention and denying

attorney’s fees. Exclusive jurisdiction lay in the Supreme

Court and we, therefore, lacked jurisdiction to hear the

appeals. 505 F.2d at 918. Here appellants sought to have this

court, which clearly had jurisdiction over their appeal, declare

that they had a right to intervene. The relief they sought

was unequivocally denied. The appellants were properly

before this court for the purpose of pursuing their appeal,

and are properly before us for purposes of determining their

liability for attorney’s fees generated by the appeal.

In Iranian Students Ass’n v. Edwards, 604 F.2d 352, 353

(5th Cir. 1979), we stated:

B-3

It is well settled that a plaintiff prevailing in actions

subject to 42 U.S.C. § 1988 is ordinarily entitled to at-

torney’s fees unless special circumstances exist to render

such an award unjust.

See also Criterion Club of Albany v. Bd. of Commissioners,

594 F.2d 118, 120 (5th Cir. 1979); Brown v. Culpepper,

559 F.2d 274, 277 (5th Cir. 1977).

Appellants also urge that the attorney’s fees are not usually

due for a procedural victory but only for substantive triumph.

Where the procedural issue is merely a question raised on

the way to the main event, the proposition is correct. Here,

however, the question raised was a procedural one: the

alleged right to intervene. If the appellants had prevailed on

appeal, Barrett’s substantive judgment would have been

imperilled. The outcome on appeal was not an interlocutory

interpretation but a final judgment on the question pre-

senicd. For these reasons, the appellee will be allowed costs

and, as an item of costs, attorney’s fees for defending this

appeal. While we have the authority to set attorney’s fees,

Knighton v. Watkins, 616 F.2d 795, 801 (5th Cir. 1980), we

think it better, under the circumstances, to make it possible

for an evidentiary hearing to be held. Therefore, the case is

remanded to the district court for such proceedings as may

be necessary to determine the amount of the fees and other

appropriate items in accordance with the standards in John-

son 5 Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.

1974).

B-4

In The

United States Court of Appeals

FOR THE FIFTH CIRCUIT

-

No. 79-2183

ip

—_

BENNny B. BARRETT,

Plaintiff-Appellee,

versus

Car. Tuomas, Sheriff,

Defendant-Appellee,

County JupGE GARRY WEBER,

ET AL.,

Movants-Appellants.

-

—_

Appeal from the United States District Court for the

Northern District of Texas

ON PETITION FOR REHEARING AND PETITION

FOR REHEARING EN BANC

(Opinion 7-17-80, 5 Cir., 197.05 en ) + ae ).

(September 5, 1980)

Before Ger, Rustin ANp Potrrz, Circuit Judges.

Per CuRIAM:

(X) The Petition for Rehearing is DENIED and no

member of this panel nor Judge in regular active service on

the Court having requested that the Court be polled on

rehearing en banc, (Rule 35 Federal Rules of Appellate

Procedure; Local Fifth Circuit Rule 16) the Petition for

Rehearing En Banc is DENIED.

( ) The Petition for Rehearing is DENIED and the

Court having been polled at the request of one of the mem-

B-5

bers of the Court and a majority of the Circuit Judges who

are in regular active service not having voted in favor of it,

(Rule 35 Federal Rules of Appellate Procedure; Local Fifth

aries Rule 16) the Petition for Rehearing En Banc is also

D.

( ) A member of the Court in active service having re-

quested a poll on the reconsideration of this cause en banc,

and a majority of the judges in active service not having

voted in favor of it, rehearing en banc is DENIED.

ENTERED FOR THE COURT:

United States Circuit Judge

Form 704-2

C-1

In The

United States Court of Appeals

FOR THE FIFTH CIRCUIT

tien

—

Ne. 879-2183

tn

ae

Benny B. Barrett,

Plaintiff-Appellee,

versus

Cari THomas, Sheriff

Defendant-Appellee,

County JUDGE GARRY WEBER,

ET AL.,

Movants-Appellants.

in,

=>

Appeal from the United States District Court

for the Northern District of Texas

ip

all

ORDER:

It Is OrpErED that the motion of appellees for award of

attorney’s fees is GRANTED. The case is remanded to the

District Court for such proceedings as may be necessary to

determine the amount of the fees and other appropriate

items in accordance with the standards in Johnson v. Georgia

Highway Express, Inc. 488 F2d 714 (5th Cir. 1974).

/s/ Atvin B. Rusin

United States Circuit Judge

C-2

In The

United States Court of Appeals

FOR THE FIFTH CIRCUIT

ia,

—

No. 879-2183

tin

aa

Benny B. Barrett,

Plaintiff-Appellee,

versus

Cart Tuomas, Sheriff

Defendant-Appellee,

CouNnTY JUDGE GARRY WEBER,

ET AL.,

Movants-Appellants.

-—

->

Appeal from the United States District Court

for the Northern District of Texas

-—

—

ORDER:

Ir Is Orperep that the order of the court filed May 12,

1980, granting the motion of appellees for award of attor-

neys’ fees, is hereby set aside. The matter appears properly

to be one for consideration by the entire panel.

Should the mover desire to file any further memorandum,

the memorandum of authorities in support of the motion

shall be filed within ten days, that is, by June 18, 1980.

Opponents of the motion are allowed ten additional days,

until June 28, 1980, within which to reply.

United States Circuit Judge

D-1

In The

United States Court of Appeals

FOR 'THE FIFTH CIRCUIT

No. 79-2183

Summary Calendar*

i,

—

Benny B. Barrett,

Plaintiff-Appellee,

versus

Cart THomas, Sheriff

Defendant-Appellee,

County JUDGE GARRY WEBER,

ET AL.,

Movants-Appellants.

Appeal from the United States District Court

for the Northern District of Texas

_

(April 11, 1980)

Before GEE, RuBIN AND Po itz, Circuit Judges.

Per CURIAM:

A former employee of the Sheriff of Dallas County, Texas,

acting as representative of persons then or previously em-

ployed by the Sheriff, brought suit to enjoin the enforcement

of certain of the Sheriff’s rules on the ground that these

unconstitutionally impaired his Fourteenth and First Amend-

ment rights, to gain reinstatement and to recover back pay.

After a jury trial concerning the discharge and back pay

issues and the entry of an interim judgment of liability

against the Sheriff, but before the district judge had entered

a final judgment, the Dallas County Commissioner and the

County Judge sought to intervene because county funds

might be liable for a judgment against the Sheriff. They

*Fed. R. App. P. 34(a); 5th Cir. R. 18.

D-2

sought a declaration that the County is not liable. The trial

court denied the motion to intervene on the triple grounds

that it was untimely, that the Sheriff adequately represented

their interest and that the parties would be prejudiced by

belated intervention. Finding that the trial judge did not

abuse his discretion, we affirm.

Any intervention, whether permissive or of right, must be

asserted by “timely application.” Fed. R. Civ. P. 24(a),(b).

Timeliness is not measured by a judicial stop watch or by a

pleadings gauge; its determination rests on the sound discre-

tion of the trial judge. NAACP v. New York, 413 U.S. 345,

93 S.Ct. 2591, L.Ed.2d .. (1973) ; Stallworth v.

Montsanto Co., 558 F.2d 257, 263 (5th Cir. 1977); United

States v. United States Steel Corp., 548 F.2d 1232, 1235

(5th Cir. 1977); Diaz v. Southern Drilling Corp., 427 F.2d

1118, 1133 (5th Cir. 1970); C. Wright & A. Miller, Federal

Practice and Procedure § 1916 (1972). That discretion turns

in large measure on the length of time during which the

proposed intervenor knew of the suit and its possible effect

on him and the prejudice to other parties that would ensue

from granting the motion at that stage of the litigation.

Stallworth v. Montsanto Co., 558 F.2d 257, 264-65 (5th Cir.

1977) ; United States v. United States Steel Corp., 548 F.2d

1232, 1236 (5th Cir. 1977); Diaz v. Southern Drilling Corp.,

427 F.2d 1118, 1125 (5th Cir. 1970); see NAACP v. New

York, 413 U.S. 345, 366-70, 93 S.Ct. 2591, 2603-04, ..... |

L.Ed.2d cictaPtihes (1973). The trial judge should

also consider prejudice to the would-be intervenor from being

denied intervention and the existence of “unusual circum-

stances” militating for or against a finding of timeliness.

Stallworth v. Montsanto Co., 558 F.2d 257, 265-66 (5th Cir.

1977).

The suit had been pending more than two years and had

been tried on the merits when the motion was filed. The

trial judge found that the County Commissioners knew of

the suit and had ample opportunity to intervene earlier. The

Commissioners do not deny this; they instead assert that

only after money judgment was imminent did they realize

that the plantiffs might seek to collect from county funds.

D-3

The failure subjectively to appreciate the perils posed by

a suit cannot excuse delay. To permit intervention while the

trial court was deliberating on a judgment, after all pro-

ceedings in the case had been completed, would have injected

new issues and required new briefs, new argument and,

perhaps, additional evidence. There was ample support for

the judge’s decision that the parties would suffer substantial

prejudice and appreciable delay.

There is no irreparable prejudice to the County Commis-

sioners. Judgment was entered against the Sheriff alone.

It expressly states that it “draws no conclusions concerning

the liability, if any, of the County of Dallas, Texas, for

complying with the provisions of the judgment.” If execution

on the judgment is levied on county funds, the County may

then oppose it.

Accordingly, the judgment is AFFIRMED.

E-1

In The

Rnited States District Court

for the Northern District of Texas

Dallas Division

a

—_

Cause No. CA3-77-1501-F

-—_—

—_

BENNY B. BARRETT,

versus

Cart THomas, Sheriff

ie,

->

ORDER DENYING INTERVENTION

Garry Weber, County Judge of Dallas County, and County

Commissioners Jim Jackson, Nancy Judy, Jim Tyson and

Roy Orr have filed a motion to intervene in this lawsuit,

and for leave to file a Cross Claim against Defendant Carl

Thomas. These proposed intervenors also seek to bring in

an additional party, Fidelity & Deposit Co. of Maryland,

the surety on Carl Thomas’ bond.

The proposed intervenors argue that they are concerned

that any judgment by Barrett and the class against Carl

Thomas may have to be paid from the county treasury, and

such payment would impair the Commissioners’ ability to

see that Dallas County funds are paid as budgeted. They

allege in their brief that they have the right to intervene

under Federal Rule of Civil Procedure 24(a) because any

judgment in this case will impair or impede their ability to

protect a claimed interest in county property.

The motion to intervene, the Commissioners contend, is

timely because Barrett has been denied relief and the claims

of the unnamed class members have not been decided by the

Court. Thomas is allegedly not protecting the County’s

E-2

interests in the lawsuit; in fact, the Commissioners allege

that his interests could be adverse to the county if the court

determines that Thomas is liable in some manner for a judg-

ment in this case.

Timeliness of the Motion

A motion to intervene must be timely filed. FMC Corp. v.

Keizer Equipment Co., 433 F2d 654 (6th Cir. 1970). When

examining a motion to intervene, a Court must consider

whether or not the applicant was in a position to seek inter-

vention at an earlier stage in the case. FMC, supra; see

Iowa State University Research Foundation Inc. v. Honey-

well, Inc. 459 F.2d 447 (8th Cir. 1972).

In this case the Commissioners have filed a motion to inter-

vene after trial on the liability issues in the lawsuit, and one

week prior to the Court’s scheduled hearing on the issue of

damages. The lawsuit was filed in 1977, two years ago; one

year ago this Court entered a preliminary injunction enjoin-

ing the Sheriff from enforcing certain rules and regulations.

No motion to intervene was filed during this two year period;

instead, the Commissioners waited until the eve of judgment

to assert their claims, apparently when they awoke to face

the possibility that they, rather than Carl Thomas, might

ultimately be responsible for paying any judgment imposed

in this case. The Commissioners have had ample opportunity

at earlier stages of this proceeding to intervene; at present

their motion is untimely.

Commissioners cite one case for authority that they have

asserted a timely motion to intervene, United Airlines v.

McDonald Douglas, 53 L.Ed. 2d 423 (1977). In that case

applicants to intervene were putative class members who

sought to intervene for the limited purpose of appealing the

denial of class certification. The District Court refused to

certify denial of class certification for interlocutory appeal,

and therefore no appeal could be taken until after a final

judgment was entered by the Court. Promptly after final

judgment was entered the putative class members sought to

intervene to appeal.

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The Supreme Court emphasized in permitting the inter-

vention that the proper time to intervene in that case was

after entry of final judgment; to seek to intervene earlier

would have meant that the putative class members would

have been spectators to the proceedings until the entry of

final judgment.

In this case, however, the Commissioners could have inter-

vened two years ago and would not have been spectators to

the proceedings; the issues they seek to raise now could have

been argued to the Court, and decided along with the rest

of the lawsuit. Now, on the eve of the Court’s entry of final

judgment, to permit the intervention would mean postpone-

ment of the April 2, 1979 hearing, postponement of the entry

of judgment, and injection of a new controversy into the

lawsuit.

Right to Intervene

The Commissioners appear to be under the false impres-

sion that this Court, without the participation of the Com-

missioners in this lawsuit, will be deciding in its final judg-

ment whether the County of Dallas and the Dallas County

Commissioners are liable for any judgment against Carl

Thomas in this case. That issue is not now before the

Court, and has never been raised in this case until the

Commissioners filed their petition in intervention. The

Court, as indicated in its memorandum order, will enter

judgment against the Defendant in this case, Carl Thomas,

and not against the Commissioners. If Carl Thomas believes,

or the Plaintiffs believe, that the Commissioners, or Dallas

County, or the Fidelity & Deposit Co. of Maryland is liable

for the judgment against Thomas, they are free to request

payment and, if denied, file a lawsuit to collect the money

they feel is owed to them by those, or any other, entities.

Thus, contrary to the Commissioners’ assertions, this Court’s

judgment will not impede or impair the Commissioners’ abil-

ity to protect any interest they have in this lawsuit.

of

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Adequacy of Thomas’s Representation

Where the interest of the intervenor is identical with that

of a party, it is presumed that the party will adequately

protect the intervenor. Penick v. Columbus Educational

Association, 574 F.2d 889 (6th Cir. 1978). The interests of

the Commissioners and the Sheriff are identical in this

lawsuit, with the possible exception that there may be some

conflict as to who should pay any judgment. Any dispute

about who should pay the judgment should be and can be

resolved between the Sheriff and the Commissioners’ Court,

and should not become, at this late stage, a new issue in

this nearly completed case.

Permissive Intervention

Timeliness is required for a petition in intervention under

Rule 24(b) and, as discussed earlier, the Commissioners’

motion is not timely. There are also no common questions

of law or fact; the issues currently before the Court involve

the amount of damages to be assessed, and the issues in the

original lawsuit involved whether or not the Sheriff took

illegal politically-motivated action against the class, Com-

missioners do not seek to raise these issues.

Finally, substantial prejudice would occur if the inter-

vention were permitted because the class remedy hearing,

which has been set for nearly two months, would have to

be postponed, causing considerable delay in this case at a

time when the case is nearly concluded.

For the reasons stated, the motion of the Commissioners

to intervene is denied.

It Is So OrpERED.

United States District Judge

March 29, 1979