                   United States Court of Appeals,

                               Fifth Circuit.

                                No. 93-5192.

              Ray HAYS, et al., Plaintiffs-Appellees,

                                     v.

        STATE OF LOUISIANA, et al., Defendants-Appellees,

                                     v.

          Bernadine ST. CYR, et al., Movants-Appellants.

                               April 20, 1994.

Appeal from the United States District Court for the Western
District of Louisiana.

Before POLITZ, Chief Judge, KING and DAVIS, Circuit Judges.

     POLITZ, Chief Judge:

     Bernadine St. Cyr and others ("St. Cyr") appeal the denial by

a three-judge district court of their attempt to intervene in

litigation challenging the Louisiana Legislature's congressional

redistricting plan.     Lacking jurisdiction we dismiss the appeal.

                                 Background

     The plaintiffs challenged the legislative redistricting plan

for allegedly employing racial gerrymandering in violation of the

Voting Rights Act and their fifth and fourteenth amendment rights

to equal protection.      A three-judge district court was convened

under 28 U.S.C. § 2284.        A trial was held in August 1992 and the

court   denied   the    constitutional    claims   and   prayer   for    an

injunction.      The   court   retained   jurisdiction   over   the   case,

however, continuing to consider plaintiffs' claims under the Voting

Rights Act.

                                      1
     In June 1993 the Supreme Court rendered its decision in Shaw

v. Reno,1 holding that constitutional equal protection claims apply

to apportionment schemes.          The following month St. Cyr filed a

motion to intervene.     In a single-judge order the court promptly

denied that motion but scheduled an evidentiary hearing in which

St. Cyr and other interested parties were invited to participate as

amici.      St.   Cyr   appealed      the    district    court's     denial   of

intervention to this court. Subsequent to that appeal the district

court declared the Louisiana apportionment scheme unconstitutional

and enjoined future elections thereunder.             The State of Louisiana

noticed its appeal of that decision to the Supreme Court.2

                                   Analysis

     St.    Cyr   complains    that    the     three-judge     district   court

improperly denied her motion to intervene.              Before addressing the

merits of her appeal we must first determine whether we have

appellate   jurisdiction      in   this     matter.     We   now   confront   the

conundrum previously hypothesized:           a case which is "fragmented or

split into pieces for purposes of appeal," with the "order granting

the injunction ... be[ing] appealed directly to the Supreme Court"

while related non-injunction issues are appealed to us.3                       We

conclude that we may not exercise jurisdiction over St. Cyr's

appeal.

     1
      --- U.S. ----, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993).
     2
      See 28 U.S.C. § 1253.
     3
      Jagnandan v. Giles, 538 F.2d 1166, 1171 (5th Cir.1976),
cert. denied, 432 U.S. 910, 97 S.Ct. 2959, 53 L.Ed.2d 1083
(1977).

                                       2
     St. Cyr understandably argues the general rule that under 28

U.S.C. § 1253 this court is the appropriate forum for the appeal of

a three-judge district court denial of an intervention.4                   She

persuasively argues that the Supreme Court will not accept a direct

appeal absent a final judgment on the injunctive relief by the

three-judge court.5 The cases cited, however, differ factually and

legally from the case at bar.6

     We   are   aware   of   no    "Goose"7   case   by   the   Supreme   Court

disposing of this issue.          We are aided, however, by a decision of

     4
      See United States v. Louisiana, 543 F.2d 1125 (5th
Cir.1976) (citing MTM, Inc. v. Baxley, 420 U.S. 799, 95 S.Ct.
1278, 43 L.Ed.2d 636 (1975)). While the court of appeals is
generally the proper forum for appealing a denial of
intervention, we have not considered a possible exhaustion of
remedies prerequisite. Section 2284(b)(3) provides that
single-judge orders may be reviewed by the full three-judge
district court panel. St. Cyr did not avail herself of this
option. We have imposed exhaustion requirements where the body
whose decision we are reviewing has a pre-appeal mechanism
through which it might "correct its own errors." Cf. Parisi v.
Davidson, 405 U.S. 34, 37, 92 S.Ct. 815, 818, 31 L.Ed.2d 17
(1972). Whether the opportunity to appeal the single-judge order
to the three-judge district court creates a responsibility to do
so before appealing to this court is an open question. Given our
conclusion on jurisdiction, however, we do not reach this issue.
     5
      The Supreme Court has narrowly construed its ability to
take direct appeals under section 1253. MTM; Gonzalez v.
Automatic Employees Credit Union, 419 U.S. 90, 95 S.Ct. 289, 42
L.Ed.2d 249 (1974).
     6
      E.g., Jagnandan, 538 F.2d at 1171 ("The absence of an
appeal from the injunctive relief eliminates that hypothetical
[of simultaneous appeals in separate courts] from surfacing
here.").
     7
      The terminology for a commanding precedent, factually on
all fours, varies, being referred to as a "Goose" case in
Louisiana, a "Spotted Horse" or "Spotted Dog" case in Alabama, a
"Cow" case in Kansas, and a "White Horse" or "White Pony" case in
Texas. Jefferson v. Ysleta Independent School Dist., 817 F.2d
303, 305 n. 1 (5th Cir.1987).

                                        3
our colleagues in the Eighth Circuit8 who declined to act on an

appealed denial of intervention where the merits of a three-judge

court ruling was on appeal to the Supreme Court.          The factual

situation at bar is the same;      only the timing of the notices of

appeal differ.

         We conclude that once there has been a timely and appropriate

appeal to the Supreme Court of a three-judge court's ruling on the

merits, neither 28 U.S.C. § 1253 nor the Supreme Court's narrowing

gloss suggest that the Supreme Court restrain from also considering

interlocutory orders properly appealed.     We understand the Supreme

Court as indicating that when presented as a part of the appeal of

the judgment on the merits by the three-judge court it will

consider other rulings and orders of the trial court.9         We are

persuaded that we have no jurisdiction of a matter properly on

appeal before the Supreme Court.10

     When the instant appeal was noticed the three-judge court had

     8
      Benson v. Beens, 456 F.2d 244 (8th Cir.1972).
     9
      See Mitchell v. Donovan, 398 U.S. 427, 90 S.Ct. 1763, 26
L.Ed.2d 378 (1970) (a direct appeal which includes "only a
declaratory judgment" is unreviewable) (emphasis added);
Rockefeller v. Catholic Medical Center of Brooklyn & Queens,
Inc., 397 U.S. 820, 90 S.Ct. 1517, 25 L.Ed.2d 806 (1970) ("The
judgment appealed from does not include an order granting or
denying an interlocutory or permanent injunction and is therefore
not appealable to this Court under 28 U.S.C. § 1253.") (emphasis
added). The Supreme Court's language strongly implies that it
would accept an appeal of some matter by itself normally
unreviewable on direct appeal if that appeal is included in an
appeal from an injunctive order.
     10
      28 U.S.C. § 1291 ("The courts of appeals ... shall have
jurisdiction of appeals from all final decisions of the district
courts ... except where a direct review may be had in the Supreme
Court.").

                                   4
not issued its final judgment on the merits.          But before this court

could address the appeal which, when noticed, very likely was

properly before us, the trial court ruled on the merits and an

appeal was lodged thereon with the Supreme Court.                    With that

lodging our appellate jurisdiction was impacted.              Were we to rule

otherwise our decision on the merits of the intervention order

could   cast   a   shadow     or    impinge   upon    the    Supreme   Court's

functioning.       As   a   lower   federal   court   we    have   neither   the

authority nor inclination to do so.

     We conclude that we lack appellate jurisdiction over the

appeal of the denial of intervention to the appellants herein and,

accordingly, their appeal is DISMISSED.




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