Davis v. Board of School Commissioners

Fifth Circuit

Davis v. Board of School Commissioners

616 F.2d 893, 22 Fair Empl. Prac. Cas. (BNA) 1583, 1980 U.S. App. LEXIS 17790, 23 Empl. Prac. Dec. (CCH) 31,080

CourtCourt of Appeals for the Fifth Circuit

DecidedMay 7, 1980

DocketNo. 78-1078

StatusPublished

Cited by1 cases

This text of 616 F.2d 893 (Davis v. Board of School Commissioners) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Davis v. Board of School Commissioners, 616 F.2d 893, 22 Fair Empl. Prac. Cas. (BNA) 1583, 1980 U.S. App. LEXIS 17790, 23 Empl. Prac. Dec. (CCH) 31,080 (5th Cir. 1980).

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Opinion

PER CURIAM:

The motion for rehearing is granted. Part I of the panel opinion, 600 F.2d 470, is vacated. It appearing that neither appellants nor their proposed class were ever members of the plaintiff class in the underlying school case, and that appellants thus seek not to superimpose or carve out a “subclass” but to represent Title VII claimants who are benefitted only incidentally by the desegregation injunction bottomed on 42 U.S.C. § 1983 (1976), the cause is remanded for a determination whether appellants are proper class plaintiffs under the usual procedural criteria. See Fed.R.Civ.P. 23. Although we have held that these appellants must proceed as intervenors, see Davis v. Board of School Commissioners, 517 F.2d 1044 (5th Cir. 1975), cert. denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188 (1976), they nonetheless are entitled to the same consideration under Rule 23 as any other litigant would be.

The panel opinion is in all other respects affirmed.

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 12) the Petition for Rehearing En Banc is DENIED.

REHEARING GRANTED-AFFIRMED AND REMANDED.

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PER CURIAM:

The motion for rehearing is granted. Part I of the panel opinion, 600 F.2d 470, is vacated. It appearing that neither appellants nor their proposed class were ever members of the plaintiff class in the underlying school case, and that appellants thus seek not to superimpose or carve out a “subclass” but to represent Title VII claimants who are benefitted only incidentally by the desegregation injunction bottomed on 42 U.S.C. § 1983 (1976), the cause is remanded for a determination whether appellants are proper class plaintiffs under the usual procedural criteria. See Fed.R.Civ.P. 23. Although we have held that these appellants must proceed as intervenors, see Davis v. Board of School Commissioners, 517 F.2d 1044 (5th Cir. 1975), cert. denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188 (1976), they nonetheless are entitled to the same consideration under Rule 23 as any other litigant would be.

The panel opinion is in all other respects affirmed.

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 12) the Petition for Rehearing En Banc is DENIED.

REHEARING GRANTED-AFFIRMED AND REMANDED.

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616 F.2d 893, 22 Fair Empl. Prac. Cas. (BNA) 1583, 1980 U.S. App. LEXIS 17790, 23 Empl. Prac. Dec. (CCH) 31,080, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-board-of-school-commissioners-ca5-1980.

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