707 F2d 834 New Orleans Public Service Inc v. United Gas Pipe Line Company

707 F.2d 834

NEW ORLEANS PUBLIC SERVICE, INC., Plaintiff,
Ernest Morial, et al., Movants-Appellants,
v.
UNITED GAS PIPE LINE COMPANY, Defendant-Appellee.

No. 82-3194.

United States Court of Appeals,
Fifth Circuit.

June 2, 1983.

McGlinchey, Stafford & Mintz, Donald R. Mintz, Constance Charles Willems, New Orleans, La., for movants-appellants.

Lemle, Kelleher, Kohlmeyer & Matthews, C. Murphy Moss, Jr., Robert G. McIver, Victoria L. Knight, New Orleans, La., James M. Costan, Kevin W. McLean, Douglas Knox Bemis, Jr., W. DeVier Pierson, Washington, D.C., for defendant-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana; Lansing L. Mitchell, Judge.

Before BROWN, GEE, REAVLEY, POLITZ, RANDALL, JOHNSON, WILLIAMS, GARWOOD and HIGGINBOTHAM, Circuit Judges.

BY THE COURT:


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Of the 13 judges constituting all of the judges in active service and participating in the poll which put the case en banc, four are now disqualified. To avoid any doubts the remaining nine judges were repolled. As those voting to put the case en banc were less than seven and did not constitute as required a "majority of the circuit judges of the circuit who are in regular active service" 28 U.S.C. Sec. 46(c) the previous order putting the case en banc is VACATED, 694 F.2d 421, the setting of the case for oral argument for June 6, 1983 is cancelled and the panel's opinion, 690 F.2d 1203, is reinstated.