New Orleans Public Service, Inc. v. United Gas Pipe Line Co.
| Decision Date | 27 December 1982 |
| Docket Number | No. 82-3194,82-3194 |
| Citation | 694 F.2d 421 |
| Parties | NEW ORLEANS PUBLIC SERVICE, INC., Plaintiff, Ernest Morial, et al., Movants-Appellants, v. UNITED GAS PIPE LINE COMPANY, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
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.
ON PETITIONS FOR REHEARING AND SUGGESTIONS FOR REHEARING EN BANC
Before GOLDBERG, WILLIAMS and GARWOOD, Circuit Judges.
No member of this panel and no 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 16), the suggestions for rehearing en banc are DENIED.
The petition of defendant-appellee United Gas Pipe Line Company for rehearing is GRANTED for the limited purpose set out below.
The petition for rehearing brings to our attention the fact that by vote of the citizens of the City of New Orleans, the New Orleans City Council ceased to have the power to regulate the rates of public utilities within the City of New Orleans as of January 1, 1982. We, therefore, withdraw our holding that the "public officials and agencies have a right to intervene under F.R.Civ.P. 24(a)" as stated in the Conclusion of our original opinion, New Orleans Public Service, Inc. v. United Gas Pipe Line Co., 690 F.2d 1203, at 1215 (5th Cir.1982). We also withdraw that portion of the opinion designated II A, which considers intervention as a matter of right by the public officials.
We emphasize that we do not withdraw our holding that it was an abuse of discretion for the district court to deny the motion of the members of the City Council to intervene permissively under Rule 24(b). That portion of our opinion, designated II B, stands unchanged except for incidental references to the rate making power of the New Orleans City Council. We reaffirm the holding that the members of the City Council are proper parties to this proceeding by virtue of their motion for permissive intervention.
Treating suggestions for rehearing en banc as motions for rehearing by the panel, they are DENIED except as stated above.
I respectfully dissent from so much of the majority opinion on rehearing as holds that it was an abuse of discretion to deny the city officials' requested permissive intervention under Rule 24(b). As relief is sought only under the private contract between NOPSI and United, and the contract creates no rights in third parties, the city has no rights to...
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New Orleans Public Service, Inc. v. United Gas Pipe Line Co.
...district court abused its discretion in denying the city officials permissive intervention. 690 F.2d 1203, modified on rehearing, 694 F.2d 421 (5th Cir.1982). This court en banc, disagreeing with the latter determination, now holds that the city officials were properly denied CONTEXT FACTS ......
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Gulf States Utilities Co. v. Alabama Power Co.
...city officials--had been given the authority to regulate NOPSI's rates, and we reversed NOPSI I. New Orleans Public Service, Inc. v. United Gas Pipeline Co., 694 F.2d 421 (5th Cir.1982) ("NOPSI II "). 13 The case before us resembles the case we perceived in NOPSI I, and NOPSI I mandates tha......
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American Maritime Transport, Inc. v. U.S.
...Orleans Public Service, Inc. v. United Gas Pipe Line Co., 690 F.2d 1203, 1214 (5th Cir.1982), vacated, in part, on other grounds, 694 F.2d 421 (5th Cir.1982), reh. granted, 719 F.2d 733 (5th Cir.1983), reinstated, 732 F.2d 452 (5th Cir.1984), cert. denied, 469 U.S. 1019, 105 S.Ct. 434, 83 L......
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Teachers' Retirement System of Louisiana v. Louisiana State Employees Retirement System
...pour autrui." See New Orleans Public Service v. United Gas Pipe Line, 690 F.2d 1203 (5th Cir.1982), opinion withdrawn in part, 694 F.2d 421 (5th Cir.1982). Professor J. Denson Smith discussed the "incidental benefit" aspect of contracts in his article, Stipulations Pour Autrui, at 11 TULANE......