### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 16

- 10347
STEPHANIE ODLE, on behalf of herself and all others similarly situated, et al;
Plaintiffs
WAL

- MART STORES, INCORPORATED,
Defendant

- Appellee

v. ORALIA FLORES; ROSIE LUJAN; ALICE BISCARDI; DEBBIE HAYWORTH; BRENDA HENDERSON; LINDA MCFADDEN; MARGARITA MURILLO; SANDRA PHELAN, on behalf of themselves and others similarly situated,
Movants

- Appellants

Appeal from the United States District Court for the Northern District of Texas

Before REAVLEY, ELROD, and GRAVES, Circuit Judges

. PER CURIAM: This is a case involving would

- be plaintiff

– intervenors who filed their motion to intervene after the district court had already entered a Rule 41(a)(1) stipulated dismissal of the plaintiffs’ claims . The district court believed it lacked jurisdiction to consider the motion

. It did not h ave the benefit of Sommers v. Bank of American, N.A. , decided a few months later, which rejected United States Court of Appeals Fifth Circuit 

### FILED March 27, 2017 Lyle W. Cayce ClerkNo. 16

- 10347

2 the “suggest[ion] that intervention is always improper after a case has been dismissed.” 835 F.3d 509, 513 (5th Cir. 2016). Sommers controls

. T he district

c ourt has jurisdiction to consider the would

- be intervenors’ motion. See id

. at 513 & n.5; see also Ford v. City of Huntsville , 242 F.3d 235, 2 38

– 40 (5th Cir. 2001). In a Rule 28(j) letter, appellee Wal

- Mart Stores, Inc. (“Wal

- Mart”) asserts that Sommers is contrary to prior opinions of this Court and must be disregarded under the rule of orderliness. See Arnold v. U.S. Dep’t of Interior , 213 F.3d 193, 196 n.4 (5th Cir. 2000) (“[U]nder the rule of orderliness, to the extent that a more recent case contra dicts an older case, the newer language has no effect.”). But Sommers reconciled those supposedly problematic cases,

see 835 F.3d at 513 n.5, and Wal

- Mart’s arguments amount to a request that we second

- guess Sommers

. That the rule of orderliness prohibit s. Other cases cited by Wal

- Mart but not mentioned by Sommers do not alter our conclusion. Wal

- Mart cites Gaines v. Dixie Carriers, Inc., for the proposition that “when a case is dismissed by joint consent the intervention falls with it.” There, we noted that “Appellee’s brief suggests that the case having been dismissed by joint consent the intervention falls with it,” but we rejected the contention. Gaines , 434 F.2d 52, 54 (5th Cir. 1970). Meinecke v. H & R Block of Houston, 66 F.3d 77 (5th Cir. 1995) (per curiam) , United States v. Kellogg ( I n re West Texas Marketing Corp. ) , 12 F.3d 497, 501 (5th Cir.1994), and Williams v. Ezell , 531 F.2d 1261 (5th Cir. 1976), have nothing to do with intervention or the particular jurisdictional question here presented and are not inconsistent with Sommers

. According to Wal

- Mart , Sommers also indicates th at th e would

- be intervenors ’ motion is untimely. This is consistent with it s merits brief, which flagged but reserved arguments t hat the would

- be intervenors have simply failed to comply with R ule 24 and , specifically, “cannot satisfy” its “timelinessNo. 16

- 10347

3 requirement.” According to Wal

- Mart, if jurisdiction is found to exist, we should remand for consideration of Rule 24’s basic requir ements

. We agree. On appeal, the would

- be intervenors have argued that the district court previously err ed by dismissing the original plaintiffs ’ class claims as untimely based on its determination that equitable tolling of the statute of limitations unde r American Pipe and Construction Co. v. Utah , 414 U.S. 538 (1974), is improper in a subsequent class action

. But m aking this argument is the would

- be intervenors ’ very object, their self

- declared “ purpose ” of intervening. We will not skip ahead to answer the merits question while the would

- be intervenors’ status is in doubt. Nor do we express any opinion on whether intervention is warranted. We VACATE the district court’s order denying intervention on jurisdictional grounds and REMAND for further proceed ings . The motion for leave to intervene should be considered under Rule 24.