HIGHTOWER v. Memorial Hospital Foundation of Palestine, Inc., dba Memorial Hospital, Anderson County Memorial Hospital Retirement Plan, aka the Texas Association Retirement Plan for Member Hospitals-Anderson County Memorial Hospital, Defendant-Appellant. (1996)

(Opinion September 28, 1995, 5th Circuit, 1995, 65 F.3d 443)

ORDER

In their petition for rehearing, appellees have raised a number of arguments that they did not make to this court in their original appellate briefs.   Specifically, they contend that if the scope of Title I and Title IV of ERISA are not construed consistently with regard to governmental plans that have, as here, been transferred to private entities, a number of problems will arise.   The alleged problems will include the extent to which state law rules will govern matters otherwise controlled by federal law under ERISA's preemptive provisions in Title I;  whether the Title I protections accorded the PBGC will continue to apply to plans under the circumstances of our decision;  and whether the enforcement duties of the Secretary of Labor will be inapplicable as they are included in Title I.   These arguments have been raised too late in the appellate process to be useful to this court, and they are deemed waived and have played no role in our decision.

For this reason, and because appellees' reurging of their position on rehearing is otherwise not persuasive, the petition is DENIED.

Judge COBB would grant the petition for a panel rehearing.