In the Matter of Esco Manufacturing Co., Debtor. Pension Benefit Guarantee Corp. v. Gregg Pritchard, Trustee in Bankruptcy for Esco Manufacturing Co.

ON PETITION FOR REHEARING

Before GOLDBERG 1 , HIGGINBOTHAM, and EMILIO M. GARZA, Circuit Judges. PER CURIAM:

We withdraw our earlier opinion, reported at 33 F.3d 509 (5th Cir.1994), and substitute the following opinion.

I

The district court held that the trustee in bankruptcy was obligated to terminate the debtor’s pension plan in compliance with ERISA’s termination provision, 29 U.S.C. § 1341. It affirmed the bankruptcy court’s holding that plan assets are not assets of the estate. It apparently ordered the trustee to proceed with termination of the plan, regardless of whether the trustee was…