648 F2d 265 System Fuels Inc v. United States

648 F.2d 265

SYSTEM FUELS, INC. and Arkansas Power & Light Company, Petitioners,
v.
The UNITED STATES of America and The Interstate Commerce
Commission, Respondents.

No. 79-2491.

United States Court of Appeals,
Fifth Circuit.

Unit A

June 16, 1981.

Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Edward B. Poitevent, II, New Orleans, La., J. Raymond Clark, Washington, D.C., for petitioners.

Gerald B. Fleming, Kathleen M. Dollar, Attys., ICC, Washington, D.C., Robert Lewis Thompson, John J. Powers, III, Attys., U.S. Dept. of Justice, Washington, D.C., for respondents.

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1

Paul M. Haygood, New Orleans, La., R. Eden Martin, John Will Ongman, Washington, D.C., for Burlington Northern, Inc. and Missouri Pacific Railroad Co.

2

Petition for Review of an Order of the Interstate Commerce Commission.

3

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

4

(Opinion April 8, 1981, 5 Cir., 1981, 642 F.2d 112.)

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Before WISDOM, AINSWORTH and GEE, Circuit Judges.

PER CURIAM:

6

On petition for rehearing Systems Fuels, Inc. and Arkansas Power & Light Company argue vigorously that this court mistakenly refused to reverse the Interstate Commerce Commission's computation of a fixed plant investment additive containing a "double count" of certain investment costs. Our acceptance of the Commission's action cannot stand, they assert, particularly in the face of that agency's modification of its method for arriving at appropriate investment additives. In our initial opinion in this rate proceeding, 642 F.2d 112 (5th Cir. 1981), we remanded the case to the Commission for reconsideration of its finding on the maximum reasonable rate for this coal traffic. Particular emphasis was given to the Commission's allowance of a differential pricing additive. Nothing said in our earlier opinion should be construed to deny the parties on remand the opportunity to develop a finding on the maximum reasonable rate based on costing methods currently used by the Commission with the approval of the courts.

7

The Petition for Rehearing is DENIED and 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 16) the Petition for Rehearing En Banc is DENIED.