*1
and no
panel
member of this
Judge
nor
TUTTLE,
Before
GODBOLD and
regular
in
active service on the Court
MORGAN,
Judges.
Circuit
having requested that
the Court be
polled on
en
rehearing
(Rule
banc
35
PER CURIAM:
Procedure;
Federal
Appellate
Rules of
12),
Local Fifth Circuit Rule
the Petition
appeal,
This
submitted at
the same
Rehearing
for
En
is
Banc
denied.
Muzquiz
time
the case of
v.
of
City
as
al.,
Cir.,
5th
Antonio et
the same issues its and by, disposition is controlled our decision in that case.
We the hold that trial court’s order dismissing complaint the for want of WARNER, Jr., al., etc., et J. William subject jurisdiction federal matter was Plaintiffs-Appellants, error for the reasons stated by us in the v. San Antonio case. What we have said on the merits the complaint of in San the TRUSTEES OF PO- OF BOARD Antonio may also have disposed of the FUND OF the CITY LICE PENSION plaintiffs claims of the here when the ORLEANS, and its mem- NEW OF case on is submitted However, remand. Rankin, al., bers, Capt. H. Alvin et party neither addressed the merits here Defendants-Appellees. so we do not the question reach whether 74-2303. No. plaintiffs alleged a have state of facts upon which relief could granted. be Appeals, of Court United States Fifth Circuit. judgment The of dismissal is reversed and the case is remanded for further 13, 1975. Nov. proceedings. Rehearing En Banc Granted 9, Dec. 1975. GODBOLD, Judge Circuit (dissenting): 528 See F.2d 505. For the set reasons out my in dissent- Orleans, Klein, La., Henry L. New for ing opinion Muzquiz in v. City of San plaintiffs-appellants. Antonio, 993, 520 C.A.5, F.2d 1975, I Jr., Richardson, Metairie, .La., Lamar would affirm the District Court’s finding John Suitt. jurisdiction. for that there is no 1983 §