Virginia Hightower, et al., Plaintiffs-appellees, v. Texas Hospital Association, et al., Defendants,memorial Hospital Foundation of Palestine, Inc., Dbamemorial Hospital, Anderson County Memorial Hospitalretirement Plan, Aka the Texas Association Retirement Planfor Member Hospitals--anderson County Memorial Hospital,defendant-appellant, 73 F.3d 43 (5th Cir. 1996)

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U.S. Court of Appeals for the Fifth Circuit - 73 F.3d 43 (5th Cir. 1996)

Jan. 3, 1996

Deborah G. Hankinson, William L. Banowsky, Sharon M. Fountain, Alison Roseman, Thompson & Knight, Dallas, TX, for Memorial Hosp.

Cecil A. Ray, Jr., Dallas, TX, Kirk P. Watson, Whitehurst, Harkness & Watson, P.C., Austin, TX, for Hightower, et al.

Appeal from the United States District Court for the Eastern District of Texas.


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

Before DAVIS and JONES, Circuit Judges, and COBB1 , District Judge.


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.


District Judge for the Eastern District of Texas, sitting by designation