Wildbur v. ARCO Chemical Co.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

___________

No. 91-4255
___________

KENNETH E. WILDBUR, SR., ET AL.,

Plaintiffs-Appellants,

v.

ARCO CHEMICAL CO., ET AL.,

Defendants-Appellees.

___________________________________________________________________

Appeal from the United States District Court
for the Western District of Louisiana
___________________________________________________________________
(December 7, 1992)

ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC

(Opinion 10/12/92, 5th Cir. 1992, 974 F.2d 631)

Before KING and WIENER, Circuit Judges, and LAKE*, District Judge.

PER CURIAM:

The Petitions for Rehearing are DENIED and no member of this

panel or Judge in regular active service on the Court having

requested that the Court be polled on rehearing en banc (Federal

Rules of Appellate Procedure and Local Rule 35) the Suggestion for

Rehearing En Banc is DENIED.

Although we have denied rehearing, we write to clarify our

opinion in two respects, neither of which is material to the

_______________
* District Judge for the Southern District of Texas, sitting
by designation.
outcome of our decision. The parties agree that the court did not

fully describe the relationship between section 35 of the ARRP and

the special severance benefits under Schedule M of the STAP. We

agree and modify the October 12, 1992, opinion by deleting the

sentence that begins at the end of 974 F.2d page 633 and substitut-

ing instead the following sentence:

Employees eligible for Section 35 benefits had
the option of choosing between enhanced ARRP
retirement benefits plus a reduced special
payment under the STAP or regular severance
payments under the STAP with no enhanced ARRP
retirement benefits.1

Plaintiffs argue that our opinion fails to expressly state

that the district court can consider remanded facts to the

administrator, that is, facts not originally considered by the ARRP

administrator but considered by the administrator after the dis-

trict court remanded plaintiffs' claims to the administrator for

further consideration. The remands by the district court to the

ARRP administrator were by agreement of the parties, and neither

party complained on appeal of any of the orders of the district

court remanding plaintiffs' claims for further consideration by the

ARRP administrator. Since new facts were presented to the adminis-

trator by agreement of the parties, the district court is to give

1
The sentence deleted read as follows:

An eligible employee could elect to receive either
enhanced retirement benefits under section 35 of
the ARRP or the special severance benefits provided
by Schedule M of the STAP, but not both.

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these remanded facts the same consideration it is to give to facts

initially considered by the ARRP administrator. Part III of our

opinion explains the analytical framework for the district court's

consideration of both original and remanded facts.

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