Introduction

In Callais v. Landry, No. 24-30177 (5th Cir. Mar. 27, 2025), a Fifth Circuit panel dismissed for lack of jurisdiction an appeal by a group of black voters—the “Galmon movants”—who sought to intervene in litigation challenging Louisiana’s Congressional redistricting law, Senate Bill 8 (S.B. 8). The underlying suit, brought by Louisiana voters led by Phillip Callais, alleged that S.B. 8—a remedial map creating a second majority-black district—violated the Equal Protection Clause as a racial gerrymander. A three-judge district court permanently enjoined the State from using S.B. 8, and direct appeals on the merits went to the Supreme Court. While those merits were pending at the Supreme Court, the Galmon movants asked the Fifth Circuit to reverse the three-judge court’s earlier denial of their motion to intervene at the liability stage, and to vacate proceedings that occurred without them.

The central question was not whether intervention should have been granted under Federal Rule of Civil Procedure 24, but whether the Fifth Circuit had jurisdiction to review the intervention denial once the Supreme Court had already taken up the merits from the three-judge court. Applying its earlier decision in Hays v. Louisiana, 18 F.3d 1319 (5th Cir. 1994), the Fifth Circuit held it lacked jurisdiction because the case had become “fragmented”: issues on the merits were “properly on appeal before the Supreme Court,” and a ruling on intervention by the court of appeals risked “impinging upon the Supreme Court’s functioning.”

The opinion is unpublished, but it squarely reaffirms the Hays “fragmentation” limitation on the court of appeals’ authority in three-judge court cases directly appealed to the Supreme Court. A brief concurrence by Judge Higginbotham underscores a practical trap: in such cases, any appellate review of a denial of intervention should be completed before the Supreme Court’s merits review begins, or it will likely be dismissed as jurisdictionally barred.

Summary of the Opinion

The three-judge district court allowed the State of Louisiana to intervene as of right to defend S.B. 8, permitted a group led by Press Robinson to intervene (ultimately at both liability and remedial stages), but denied intervention to the Galmon movants on the ground that the Robinson defendants adequately represented their interests. The court later allowed the Galmon movants to join only the remedial phase, after issuing a permanent injunction against S.B. 8. Louisiana and the Robinson defendants appealed the permanent injunction directly to the Supreme Court; the Supreme Court noted probable jurisdiction and heard argument. The Supreme Court also denied the Galmon movants’ separate request to intervene at that stage.

On appeal to the Fifth Circuit, the Galmon movants sought reversal of the intervention denial as to the liability phase and vacatur of proceedings conducted without them. The Fifth Circuit dismissed for lack of jurisdiction, relying on Hays v. Louisiana. Because the merits of the injunction were already before the Supreme Court, any Fifth Circuit decision on the collateral intervention question could “cast a shadow” over, or interfere with, the Supreme Court’s adjudication. The panel distinguished earlier Fifth Circuit authority allowing review of denials of intervention by three-judge courts (United States v. State of Louisiana, 543 F.2d 1125 (5th Cir. 1976)), emphasizing that those cases were not “fragmented”—i.e., the merits were not simultaneously before the Supreme Court. Hays, a later but more on-point panel decision, governs the fragmented posture here unless and until reconsidered en banc. The appeal was dismissed.

Judge Higginbotham concurred in the judgment. While he expressed the view that the Fifth Circuit does possess jurisdiction over appeals from denials of intervention entered by three-judge courts, he agreed relief was properly denied: the movants’ interests were adequately represented and timing concerns counsel that intervention appeals must be resolved before the Supreme Court’s merits review proceeds. He warned of a “procedural trap” created by the dual-track review structure.

Analysis

Precedents and Authorities Cited

• 28 U.S.C. § 2284(b): Requires a three-judge district court for certain constitutional challenges to congressional apportionment. The case at bar proceeded before such a court.
• Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998): A federal court must resolve jurisdiction before addressing the merits. The panel invoked Steel Co. to frame the threshold inquiry and to justify dismissing without reaching Rule 24 issues.
• Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1868): Quoted for the foundational proposition that without jurisdiction a court “cannot proceed at all.”
• Hays v. Louisiana, 18 F.3d 1319 (5th Cir. 1994): The centerpiece precedent. There, as here, the three-judge court enjoined a Louisiana redistricting plan; while a direct appeal to the Supreme Court was pending, would-be intervenors pressed an appeal in the Fifth Circuit. The court dismissed, holding it lacked jurisdiction to decide issues “properly on appeal before the Supreme Court,” cautioning that ruling on intervention could “impinge upon the Supreme Court’s functioning.” Callais applies Hays almost step-for-step.
• United States v. State of Louisiana, 543 F.2d 1125 (5th Cir. 1976): Earlier Fifth Circuit authority recognizing appellate jurisdiction to review denials of intervention by three-judge courts. The Callais panel reconciles this with Hays by emphasizing posture: State of Louisiana did not involve a case already “fragmented” between the Supreme Court (merits) and the court of appeals (intervention).
• Arnold v. U.S. Department of Interior, 213 F.3d 193, 196 n.4 (5th Cir. 2000): Notes the “rule of orderliness,” under which earlier panel decisions ordinarily control over later ones. The panel explained that Hays remains controlling in the specific scenario of fragmentation; State of Louisiana governs only when the case is not fragmented.
• Trans Chemical Ltd. v. China National Machinery Import & Export Corp., 332 F.3d 815, 822 (5th Cir. 2003): Cited for the proposition that the denial of intervention is reviewed de novo—though the panel did not reach the merits because jurisdiction was lacking.
• Robinson v. Ardoin, 86 F.4th 574 (5th Cir. 2023): Background litigation over Louisiana’s prior congressional map, prompting the Legislature’s enactment of S.B. 8 to create a second majority-black district.
• Supreme Court orders in this litigation: The Supreme Court noted probable jurisdiction and heard merits argument on the injunction against S.B. 8. See Robinson v. Callais, 145 S. Ct. 434 (2024) (mem.). It also denied the Galmon movants’ motion to intervene at the Supreme Court. See Louisiana v. Callais, 145 S. Ct. 765 (2024) (mem.); see also Louisiana v. Callais, No. 24-109, 2025 WL 581580 (U.S. Feb. 24, 2025).

Legal Reasoning

The panel’s reasoning unfolded in two concise moves. First, applying Steel Co., it put jurisdiction at the forefront. Second, it held that under Hays, the court of appeals lacks jurisdiction to adjudicate an intervention appeal once the merits of a three-judge court’s injunction are before the Supreme Court. In Hays’s formulation, the case has been “fragmented”—“split into pieces for purposes of appeal”—such that a ruling by the court of appeals on intervention risks “casting a shadow” over the Supreme Court’s exercise of its statutory direct-appeal jurisdiction.

The Galmon movants asked the Fifth Circuit to reverse the denial of intervention at the liability stage and to vacate proceedings that occurred without them. The panel emphasized that granting such relief in the shadow of ongoing Supreme Court merits review would “effectively be overruling the Supreme Court and foisting these litigants upon it.” That, the panel concluded, exceeds the court’s authority in a fragmented case.

The panel acknowledged tension with older circuit precedent—United States v. State of Louisiana (1976)—which recognized appellate jurisdiction over denials of intervention by three-judge courts. But it harmonized the cases through the “rule of orderliness”: while earlier panel decisions generally control, a later decision (Hays) governs a more specific scenario not addressed by the earlier case. State of Louisiana did not involve simultaneous Supreme Court merits review; Hays did, and so does Callais. Unless and until the Fifth Circuit sits en banc to revisit Hays, it controls this fragmented posture.

The panel therefore dismissed the appeal without reaching whether the Galmon movants satisfied Rule 24(a)’s “inadequate representation” requirement or whether permissive intervention should have been granted. The concurrence, while expressing the view that jurisdiction properly lies in the Fifth Circuit for such appeals, agreed that the movants’ interests were adequately represented and that, as a practical matter, any intervention appeal must be resolved before the Supreme Court undertakes merits review.

What This Decision Does—and Does Not—Decide

• Does decide: In a three-judge court redistricting case where the merits (e.g., an injunction) are already before the Supreme Court on direct appeal, the Fifth Circuit will not exercise jurisdiction over a contemporaneous appeal from a denial of intervention because doing so would interfere with the Supreme Court’s adjudication (Hays fragmentation doctrine).
• Does not decide: Whether the Galmon movants met Rule 24(a)’s standards; whether the three-judge court erred on adequacy-of-representation; or whether permissive intervention should have been allowed earlier at the liability stage. Those questions are left unresolved on the merits due to the jurisdictional bar.

Practical Impact and Prospective Significance

Callais’s immediate effect is procedural but potent. It reiterates that litigants seeking to intervene in three-judge court redistricting cases must move swiftly. Denials of intervention are appealable to the court of appeals, but that route closes once the Supreme Court has taken the merits via direct appeal under 28 U.S.C. § 1253. A delayed intervention appeal risks dismissal for lack of jurisdiction.

For counsel, several practical takeaways emerge:

• File prompt notices of appeal from intervention denials and move to expedite in the court of appeals. The concurrence’s “procedural trap” warning underscores that timing is everything: by the time the Supreme Court notes probable jurisdiction and sets argument, the Fifth Circuit may be jurisdictionally sidelined.
• Consider requesting the three-judge court to rule on intervention early—ideally before the liability hearing—and to revisit intervention at later stages if circumstances change (as occurred here for the remedial phase).
• If necessary, seek a stay or administrative pause long enough for the Fifth Circuit to resolve the intervention appeal before the case ascends to the Supreme Court on the merits. While not guaranteed, such relief may be the only way to avoid Hays’s fragmentation bar.
• When arguing adequacy-of-representation, develop a record that the existing parties cannot or will not present particular defenses, evidence, or perspectives, rather than simply asserting that proposed intervenors would “do a better job.” The concurrence indicates that such comparative arguments are unlikely to carry the day.

Institutionally, Callais preserves Supreme Court primacy over the merits in three-judge court redistricting litigation and avoids duplicative or conflicting appellate rulings. It also signals that, absent en banc reconsideration of Hays, the Fifth Circuit will continue to treat fragmented appeals as jurisdictionally barred. While this opinion is not designated for publication, its application of Hays provides clear guidance to practitioners navigating the unique two-track appellate paths that § 2284 and § 1253 create.

The Concurrence: A Warning About a “Procedural Trap”

Judge Higginbotham’s concurrence accepts the outcome but highlights an architectural problem in these cases. He reads the circuit’s precedent to recognize Fifth Circuit jurisdiction over intervention denials by three-judge courts, but he stresses that such review must occur before the Supreme Court’s merits process is underway. He points to the timeline in this case: the Galmon movants appealed on March 20, 2024; a Fifth Circuit motions panel denied expedition on March 26; the three-judge court held a three-day liability hearing April 8–10; and the Supreme Court later declined jurisdiction over the intervention denial while taking up the merits. This cadence left no room for the court of appeals to decide the intervention question before the case fragmented. The concurrence thus urges vigilance and expedition to avoid foreclosing review.

Complex Concepts Simplified

• Three-judge district court (28 U.S.C. § 2284): For certain challenges to statewide redistricting and apportionment, federal law requires a special three-judge panel. Final decisions granting or denying interlocutory or permanent injunctions are appealable directly to the Supreme Court.
• Direct appeal and “probable jurisdiction” (28 U.S.C. § 1253): Instead of petitioning for certiorari, parties in three-judge court cases take a direct appeal to the Supreme Court. The Court often issues an order noting “probable jurisdiction” to indicate it will hear the appeal, setting briefing and argument on the merits.
• Intervention (Fed. R. Civ. P. 24):
  • Intervention of right (Rule 24(a)(2)) requires showing a substantial legal interest in the case, that the disposition may impair that interest, and that existing parties may not adequately represent that interest. Adequacy is a low bar but is defeated when the proposed intervenor’s interests are wholly aligned and adequately represented by an existing party.
  • Permissive intervention (Rule 24(b)) is discretionary, based on shared questions of law or fact, balanced against potential delay or prejudice.
• “Fragmentation” of appeals (Hays v. Louisiana): A case is “fragmented” when different aspects are before different appellate courts simultaneously—here, the merits before the Supreme Court and a collateral issue (intervention) before the court of appeals. In this posture, the Fifth Circuit declines jurisdiction over the collateral appeal to avoid disrupting the Supreme Court’s merits review.
• Rule of orderliness: Within the Fifth Circuit, an earlier panel decision ordinarily binds later panels. However, where two panel decisions can be reconciled by factual posture or scope, the more on-point decision governs the specific scenario (as Hays does for fragmented appeals, despite the earlier State of Louisiana decision recognizing jurisdiction generally).
• Liability vs. remedial phases: Redistricting cases often proceed in two stages: first, liability (does the map violate the Constitution or federal law?); second, remedy (what map should be used, and on what timetable?). Courts sometimes allow different parties to participate more fully at the remedial stage even if they were not present at liability.

Conclusion

Callais v. Landry reaffirms a clear, if unforgiving, procedural rule: once the Supreme Court has taken up the merits of a three-judge court’s redistricting case on direct appeal, the Fifth Circuit will not entertain a concurrent appeal from a denial of intervention. This “fragmentation” doctrine, grounded in Hays v. Louisiana, preserves the Supreme Court’s exclusive control over the merits and prevents conflicting or shadow rulings from the court of appeals. While older circuit precedent recognizes appellate jurisdiction over denials of intervention from three-judge courts, Callais confirms that such jurisdiction evaporates in the fragmented posture.

The concurrence flags a practical lesson. Parties seeking to intervene must move swiftly, seek expedited appellate review, and press for early intervention rulings—lest the Supreme Court’s assumption of the merits foreclose appellate review of intervention altogether. In the high-stakes arena of redistricting and election law, timing is not merely strategic; it is jurisdictional. Callais thus serves as both a doctrinal restatement and a cautionary roadmap for litigants navigating the dual appellate channels unique to three-judge court litigation.

Note: This commentary reflects the court’s opinion as issued and does not constitute legal advice.