SUR PETITION FOR REHEARING IN BANC
Present: SEITZ, Chief Judge, ALDISERT, ADAMS, GIBBONS, HUNTER, WEIS, GARTH, HIGGINBOTHAM, SLOVITER, BECKER, Circuit Judges.
The petition for rehearing filed by Appellant in the above-entitled case having been submitted to the judges who participated in the decision of this Court and to all other available circuit judges in the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the Court in banc, the petition for rehearing is denied.
Judge Garth would grant the petition for rehearing.
Statement Sur Denial of Rehearing
I vote for rehearing because of two primary concerns.
First, I am disturbed by the fact that a law firm will be awarded over $5,000.00 solely for preparing and advancing a fee petition covering legal services alleged to be worth approximately $17,000.00. The preparation of that petition had nothing to do with the merits of the plaintiffs' original claim or with the social policy of encouraging laywers to counsel clients who would otherwise go unrepresented. Aside from the question whether, absent special circumstances, one group of lawyers should file a fee petition for lawyers who have actually litigated a controversy, I do not believe that we should sanction such a large award of fees when one set of counsel hires more expensive counsel to advance a fee petition.
Second, and perhaps more important, I note that the Supreme Court has recently heard arguments in a case involving the more fundamental question presented by this appeal: whether judicial immunity bars the award of attorneys' fees under 42 U.S.C. § 1988 against members of the judiciary who have acted in their official capacity. Pulliam v. Allen, 51 U.S.L.W. 3770 (U.S. April 25, 1983) (No. 82-1432). If the present case were to come before a panel now, it would seem manifest that the appropriate course would be to hold the matter under advisement until the Supreme Court had definitively decided the issue. I think it only fair to the defendants that we accord their case the same functional status, by holding it over for in banc consideration until Pulliam has been resolved.
Judges Hunter, Weis, and Becker join in this statement.