Opinion
No. 87-1401.
June 16, 1988.
Appeal from the United States District Court for the Northern District of Texas.
Before CLARK, Chief Judge, JOLLY and JONES, Circuit Judges.
ON PETITION FOR REHEARING [2] (Opinion March 14, 1988, 5th Cir. 1988, 839 F.2d 1075)
The petitioner, defendant-appellee Otis Bowen, Secretary of Health and Human Services, requests rehearing because he claims that the panel's decision that the Secretary acted in bad faith in the case of Mary Phillips is based upon a factual error. See Baker v. Bowen, 839 F.2d 1075, 1087 (5th Cir. 1988). As he acknowledges in his petition, however, any error that may have occurred was caused by the Secretary's own failure to present the argument now made in support of the petition, either on appeal or to the district court. It is simply too late at this juncture to present a new factual argument. For this reason the petition for rehearing is hereby
DENIED.