dissenting.
I respectfully dissent from the majority’s holding that the Billings do not have a Seventh Amendment right to a jury trial in their malpractice action against Ravin, Greenberg, the attorneys who represented their bankruptcy estate. The majority concludes that the Billings are not entitled to a jury trial because this action “falls within the process of the allowance and disallowance of claims,” thereby “be[ing] converted from a legal [claim] into an equitable dispute over a share of the estate.” Maj. op. at 1253. Although I believe that the majority has done a commendable job in attempting to reconcile its conclusion with the precedent, thereby avoiding many difficult issues unresolved in this court, I do not believe that the analytic building blocks used by the majority support that conclusion.
I.
I base my view that the Billings’ action is a legal claim on which they are entitled to a jury trial on the Supreme Court’s decision in Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 109 S.Ct. 2782, 106 L.Ed.2d 26 (1989), a case which I believe the majority has inadequately distinguished. In Granfinanciera, the Court held that defendants sued by a bankruptcy trustee who sought to void a fraudulent transfer were entitled to a jury trial under the Seventh Amendment even though the proceeding was a core proceeding.1
The majority agrees at the outset that the malpractice action filed by the Billings satisfies the first two prongs of the general test set forth in Granfinanciera for determining whether a claim is subject to the right to trial by jury, i.e. whether the action would have been one at law or equity in 18th-century England before the courts of law and equity merged, and whether the remedy sought is a legal one. See id. at 42, 109 S.Ct. at 2790. Patently, the Billings’ malpractice action seeking purely monetary relief is a “[s]uit[ ] at common law.” U.S. Const, amend. VII; see Chauffeurs, Teamsters & Helpers, Local No. 391 v. Terry, 494 U.S. 558, 568, 110 S.Ct. 1339, 1346, 108 L.Ed.2d 519 (1990) (noting that attorney malpractice was historically one at law, citing Russell v. Palmer, 2 Wils. K.B. 325, 95 Eng.Rep. 837 (1767)); see also Whitehead v. Shattuck, 138 U.S. 146, 151, 11 S.Ct. 276, 277, 34 L.Ed. 873 (1891) (suits for damages have an adequate remedy at law and should not be tried at equity); In re Ben Cooper, Inc., 896 F.2d 1394, 1402 (2d Cir.), vacated due to potential jurisdictional defect, 498 U.S. 964, 111 S.Ct. 425, 112 L.Ed.2d 408 (1990), reinstated, 924 F.2d 36 (2d Cir.), cert. denied, 500 U.S. 928, 111 S.Ct. 2041, 114 L.Ed.2d 126 (1991) (“Cooper seeks damages from them for alleged negligence and malpractice. It is difficult to imagine a claim that is more inherently legal_ The conclusion that ‘in an ordinary tort action ... the right of trial by jury is guaranteed by the Constitution’ is so obvious it hardly needs belaboring.” (quoting United States v. Fotopulos, 180 F.2d 631, 634 (9th Cir.1950)); In re Jackson, 118 B.R. 243, 249 (E.D.Pa.1990) (“allegations of malpractice ... are the common stuff of a jury claim”).
Thus, the Billings’ malpractice claim would be entitled to a jury trial unless it fell within the third prong of Granfinanciera covering those cases involving “public rights” which Congress can assign for adjudication to a non-jury tribunal. 492 U.S. at 42, 109 S.Ct. at 2790. The majority never holds that the Billings’ malpractice action against their bankruptcy attorneys involves “public rights,” and one would expect that the absence of such a holding would be determinative because the Court explicitly stated in Granfinanciera that “[u]nless a legal cause of action involves ‘public rights,’ Congress may not deprive parties litigating over such a right of the Seventh Amendment’s guarantee to a jury trial.” Id. at 53, 109 S.Ct. at 2796.
Nor could the majority hold, consistent with Granfinanciera, that because the Bill*1255ings were in bankruptcy their malpractice claim became a “public right,” particularly in light of the Court’s language in that opinion:
state-law causes of action for breach of contract or warranty are paradigmatic private rights, even when asserted by an insolvent corporation in the midst of Chapter 11 reorganization proceedings.... There can be little doubt that fraudulent conveyance actions by bankruptcy trustees ... [which] “constitute no part of the proceedings in bankruptcy but concern controversies arising out of it” — are quintessentially suits at common law that more nearly resemble state-law contract claims brought by a bankrupt corporation to augment the bankruptcy estate than they do creditors’ hierarchically ordered claims to a pro rata share of the bankruptcy res. They therefore appear matters of private rather than public right.
492 U.S. at 56, 109 S.Ct. at 2798 (emphasis added) (citations omitted).
This language dictates that what are to be considered “public rights” are “creditors’ hierarchically ordered claims to a pro rata share of the bankruptcy res,” in contrast to “state-law contract claims brought by ... bankrupt [individuals] to augment the bankruptcy estate,” which are private rights for which the right to a jury trial is preserved. Inasmuch as the Billings’ malpractice claim falls within the latter, that should be disposi-tive of the issue before us.
II.
The majority concedes that the Billings’ malpractice claim is a private right but nonetheless argues that there is no right to a jury trial because of a “limitation on the Seventh Amendment right to trial by jury in addition to the public rights doctrine.” Maj. op. at 1247. This additional limitation on which the majority relies is that “[t]here is no right to trial by jury where the claims allowance process is implicated, because the Bankruptcy Act ‘converts the creditor’s legal claim into an equitable claim to a pro rata share of the res.’ ” Maj. op. at 1247 (quoting Katchen v. handy, 382 U.S. 323, 336, 86 S.Ct. 467, 476, 15 L.Ed.2d 391 (1966)). The Katchen language is inapplicable because this case does not involve a “creditor’s legal claim” and therefore cannot implicate the majority’s equitable conversion theory.
In dealing with this issue, the majority opinion relies to a great extent on Langenkamp v. Culp, 498 U.S. 42, 111 S.Ct. 330, 112 L.Ed.2d 343 (1990) (per curiam), in which the Court found that a creditor who filed a claim against the estate had no right to a jury trial in a resultant preferential transfer action brought by the bankruptcy trustee. However, nothing in Langenkamp detracts from the language quoted above from Granfinanciera about preservation of jury trials for private rights, and until and unless the Court explicitly disapproves it or gives us more guidance, we are bound by the Court’s statement that the sort of claim at issue here is one for which the right to a jury trial will be preserved. I believe the most reasonable manner to resolve what may appear to be tension in the language of Katchen, Langenkamp, and Granfinanciera is to regard claims presented by creditors in bankruptcy as claims over “public rights.”
The paradigmatic “public rights” are the new statutory rights which Congress creates and assigns to an administrative agency, discussed in Atlas Roofing Co., Inc. v. Occupational Safety & Health Review Comm’n, 430 U.S. 442, 450-55, 97 S.Ct. 1261, 1266-69, 51 L.Ed.2d 464 (1977). See also Granfinanciera, 492 U.S. at 51,109 S.Ct. at 2795. Granfinanciera recognized that the “public rights” concept extends beyond those assigned to an administrative agency. The Federal Government need not be a party for a matter to be a “public right.” See id. at 54, 109 S.Ct. at 1268.
The Court noted in Granfinanciera, “[o]ur case law makes plain, however, that the class of ‘public rights’ whose adjudication Congress may assign to administrative agencies or courts of equity sitting without juries is more expansive than Atlas Roofing’s, discussion suggests.” Id. at 53, 109 S.Ct. at 2796. It continued: “[t]he crucial question, in cases not involving the Federal Government, is whether ‘Congress, acting for a valid legislative purpose pursuant to its constitutional powers under Article I, [has] ereate[d] a *1256seemingly ‘private’ right that is so closely integrated into a public regulatory scheme as to be a matter appropriate for agency resolution with limited involvement by the Article III judiciary.’ ” Id. at 54, 109 S.Ct. at 2796 (citation omitted).
Katchen, one of the cases on which the majority relies, speaks of the “Bankruptcy Act” as “convert[ing] the creditor’s legal claim into an equitable claim.” 382 U.S. at 336, 86 S.Ct. at 476. There is no question that, by its statutes governing bankruptcy, Congress has compelled creditors with legal claims to present those claims in an equitable forum, i.e. the bankruptcy court. The process of compelled presentation of claims and allowance and disallowance of claims in an equitable forum which requires equal treatment for claimants similarly situated, invalidates preferences, and enables a debtor to start afresh implicates public policies that go beyond the adjudication of private rights. Thus, although the majority eschews denominating the presentation of creditors’ claims in bankruptcy as involving “public rights,” I believe no other explanation is possible. I recognize that the Granfinanciera Court stopped short of declaring the restructuring of debtor-creditor relations in bankruptcy a “public right,” see 492 U.S. at 56 n. 11, 109 S.Ct. at 2798 n. 11, but neither did it say anything inconsistent with that view.
More crucial to the issue before us, of course, is what claims are encompassed withr in the “public rights” in the bankruptcy context. I do not disagree with the majority’s view that those claims that have been asserted by creditors are part of the claims-allow-anee process which is integral to the restructuring of the debtor-creditor relationship, and therefore those claimants can constitutionally be deprived of their jury trial right with respect to those claims.
My disagreement with the majority is primarily based on its conclusion that the Billings’ malpractice claim fits into that definition. The distinguishing feature between Granfinanciera and Langenkamp was whether the creditors had filed a claim against the estate. In Granfinanciera, they had not. In Langenkamp, they had. As the Court stated in Langenkamp, by filing a claim the creditors were said to have “trigger[ed] the process of ‘allowance and disal-lowance of claims,’ ” Langenkamp, 498 U.S. at 44, 111 S.Ct. at 331 (quoting Granfinanciera, 492 U.S. at 58, 109 S.Ct. at 2799). In Langenkamp, the issue was whether the creditors, having filed their claim, were entitled to a jury trial when the trustee then sued them to recover allegedly preferential monetary transfers. In holding they were not, Langenkamp explained its interconnection with Granfinanciera by stating that “[i]f the creditor is met, in turn, with a preference action from the trustee, that action becomes part of the claims-allowance process which is triable only in equity. [Granfinanciera, 492 U.S. at 58-59, 109 S.Ct. at 2799.] In other words, the creditor’s claim and the ensuing preference action by the trustee become integral to the restructuring of the debtor-creditor relationship through the bankruptcy court’s equity jurisdiction, [Id] at 57-58, 109 S.Ct. at 2798-99. As such, there is no Seventh Amendment right to a jury trial.” Langenkamp, 498 U.S. at 44-45, 111 S.Ct. at 331.
Langenkamp made clear, however, that “[i]f a party does not submit a claim against the bankruptcy estate ... the trustee can recover allegedly preferential transfers only by filing what amounts to a legal action to recover a monetary transfer. In those circumstances the preference defendant is entitled to a jury trial.” Id. at 45, 111 S.Ct. at 331 (emphasis in original).
This is the same analysis as presented in Katchen v. Landy, 382 U.S. 323, 336, 86 S.Ct. 467, 476, 15 L.Ed.2d 391 (1966):
although petitioner might be entitled to a jury trial on the issue of preference if he presented no claim in the bankruptcy proceeding and awaited a federal plenary action by the trustee, when the same issue arises as part of the process of allowance and disallowance of claims, it is triable in equity. The Bankruptcy Act, passed pursuant to the power given to Congress by Art. I, § 8, of the Constitution to establish uniform laws on the subject of bankruptcy, converts the creditor’s legal claim into an *1257equitable claim to a pro rata share of the res.
(citation omitted) (emphasis added).
III.
To recapitulate, only claims that are part of the “process of allowance and disallowance of claims” that is “integral to the restructuring of the debtor-creditor relationship,” Langenkamp, 498 U.S. at 44, 111 S.Ct. at 331 (quotations omitted), are “public rights” which need not be tried to a jury. Both Langenkamp and Katchen involved creditors bringing a claim to bankruptcy to adjudicate their pro rata shares of the res. Granfinan-ciera differed because it more involved a “state-law contract claim[] brought by a bankrupt corporation to augment the bankruptcy estate than [it did] creditors’ hierarchically ordered claims to a pro rata share of the bankruptcy res.” Granfinanciera, 492 U.S. at 56, 109 S.Ct. at 2798. The Billings’ malpractice action is more analogous to Granfinanciera since it is an effort by the debtor to augment the estate as to a creditor who has not filed a pre-petition claim.
The majority analogizes this case to Katchen and Langenkamp because it regards Ra-vin, Greenberg’s request for fees as triggering the claims allowance process. Therefore, the majority regards the Billings’ malpractice action as analogous to a resultant preference action filed by a trustee. However in those cases the party who sought the jury trial was the creditor who filed the claim, not the trustee who filed the fraudulent transfer action. Therefore, even if the analogy worked, it would not dictate the result the majority reaches.
Because Ravin, Greenberg has not asked for a jury trial, we need not decide in this case whether its fee request is part of the claims allowance process “integral to the restructuring of debtor-creditor relations.” I note merely that there are differences between its position and those of creditors because the claims allowance process involves pre-petition creditors’ “hierarchically ordered claims to a pro rata share of the bankruptcy res.” Granfinanciera, 492 U.S. at 56, 109 S.Ct. at 2798. Unlike pre-petition creditors, attorneys seeking to recover fees as an administrative expense will not be forced to accept only a pro rata percentage of the debt they are owed. Indeed, the plan under which the debtor will restructure is usually fashioned and approved before the attorneys file their application for fees.
In any event, the right of a bankruptcy trustee to avoid a preference was specifically provided for by Congress in 11 U.S.C. § 547(b) (1988) and is therefore undeniably part of “the process of allowance and disal-lowance of claims” in that it secures equality of treatment. In contrast, there is no provision in the Bankruptcy Code for malpractice claims as a tool to assist in a bankruptcy restructuring. While the Billings’ malpractice claim, if successful, may affect the total amount of the bankruptcy estate and hence the amount received by the creditors, it is unrelated to the equality of treatment of pre-petition creditors and will not impact on their pro rata percentages of that estate vis-a-vis each other. Thus, it is not “integral to the restructuring of the debtor-creditor relationship.” Langenkamp, 498 U.S. at 44, 111 S.Ct. at 331.
I believe the majority is mistaken in treating the Billings’ malpractice claim as if it was only a defense to Ravin, Greenberg’s request for fees. The complaint does more than dispute whether and in what amount the Billings owe Ravin, Greenberg. In addition to the request for “disgorgement of all legal fees received,” which might be analogous to a claim asserting fraudulent preference, it also seeks compensatory and punitive damages for, inter alia, negligent misrepresentation, breach of fiduciary duty and breach of contract, which may exceed the fees received. By treating the malpractice claim as part of the Ravin, Greenberg request for fees the majority denies the Billings their fair opportunity to prove before a jury that Ravin, Greenberg owes them damages.
IV.
I turn therefore to the three principal court of appeals’ cases referred to by the majority on the issue before us. I agree with the majority’s reasoning in rejecting the analysis propounded in dictum in In re Hal*1258lahan, 936 F.2d 1496, 1505 (7th Cir.1991), that a debtor waives its jury trial right by filing a petition for bankruptcy. I need not address the waiver argument again except to note that it was also espoused in In re McLaren, 3 F.3d 958, 961-62 (6th Cir.1993).
The waiver analysis was also rejected in In re Jensen, 946 F.2d 369, 374 (5th Cir.1991), and the result there is consistent with my analysis. The Jensens, the debtors, sought a jury trial on their claims for damages against non-creditor defendants in state court on pre-petition claims for tortious interference with the Jensens’ business relations and conspiracy. The court of appeals found that the debtors maintained their right to a jury trial, holding that their claims were not “integral to the restructuring of debtor-creditor relations” because they were “essentially claims brought by the debtor (in possession) against non-creditor third parties to augment the bankruptcy estate.” Id. (quotations omitted).
Germain v. Connecticut National Bank, 988 F.2d 1323 (2d Cir.1993), is the case of the three most analogous to the present one. In Germain, the bankruptcy trustee filed suit in state court against a creditor who had filed a proof of claim against the estate. The trustee alleged mostly post-petition misconduct, i.e. threatening to terminate post-petition financing, threatening to force the debtor out of business, and threatening to convert the proceeding from Chapter 11 to Chapter 7. The lawsuit “allege[d] essentially that [the creditor] used its power as the debtor’s primary lender to exercise control of the debtor to its detriment.” Id. at 1326.
In upholding the trustee’s right to a jury trial, the court distinguished the claim at issue from the preferential transfer issue raised in Katchen and Langenkamp because the Bankruptcy Code requires the court to resolve any preference issue before a claim may be allowed. Id. at 1327. It followed that a preference action is part of the allowance and disallowance of claims. In contrast, the court reasoned, “suits like the Trustee’s action in this case which would augment the estate but which have no effect on the allowance of a creditor’s claim simply cannot be part of the claims-allowance process.” Id. at 1327. The court concluded that these claims “are not bankruptcy claims and only incidentally implicate provisions of the Bankruptcy Code.” Id. at 1329. It continued:
A different result might adhere if the action had become part of the claims-allowance process, because determining pro rata distribution is characteristically equitable. An action that bears directly on the allowance of a claim is integrally related to the equitable reordering of debtor-creditor and creditor-creditor relations. If an equitable reordering cannot be accomplished without resolution of what would otherwise be a legal dispute, then that dispute becomes an essential element of the broader equitable controversy.
Id. at 1329 (citation omitted).
Although the majority seeks to distinguish Germain on the ground that the trustee’s cause of action, which related to the creditor’s post-petition conduct, was “unrelated to the allowance of the creditor’s claim,” maj. op. at 1252, whereas it regards the debtors’ allegations of malpractice in this case as “part of the process of allowance and disal-lowance of claims,” maj. op. at 1252, I have already explained why I believe it is not.
The majority also states that “[t]he court in Germain specifically addressed the situation of a malpractice claim against bankruptcy counsel” and quotes the following from Germain:
To the extent that ... the debtor was essentially objecting to the allowance of the attorney’s claim and that the debtor’s success meant the disallowance of the attorney’s claim, we agree that the debtor’s objection was part of the claims-allowance process.
Maj. op. at 1252 (quoting Germain, 988 F.2d at 1330 n. 9). That Germain footnote is not on point. It was addressing the decision in In re Frost, Inc., 145 B.R. 878, 882 (Bankr. W.D.Mich.1992), which is inapposite here because it involved an attorney’s proof of claim for a pre-petition debt, and thus was to be treated like any other pre-petition creditor. The mere happenstance that the pre-petition creditor in Frost was also the attorney who represented the debtor does not make Frost analogous to the current case involving the debtors’ attorneys who seek their fees as administrative expenses.
*1259The fact remains that in Germain, the appellate ease presenting the facts closest to those with which we are faced, a claim asserted by the trustee (here debtor) against a claimant creditor (here an attorney seeking bankruptcy-related fees) because of actions taken post-petition, the court reaffirmed the right to jury trial on that claim. The majority cites no contrary authority. I note an additional case not cited by the majority, In re Jackson, 118 B.R. 243 (E.D.Pa.1990), in which the district court held that the Chapter 7 trustee had a Seventh Amendment right to a jury trial in an adversary proceeding against the attorneys who had represented the estate before the bankruptcy was converted from a Chapter 11 to a Chapter 7 case. The court reasoned,
The claim, as described, is one that sounds both in contract and in tort. It characterizes, in a variety of ways, allegations of malpractice that are the common stuff of a jury claim. So coverage by the Seventh Amendment seems clear.
Id. at 249.
Ultimately, the majority relies on two reasons for its decision to deprive the debtor of its jury trial on its legal malpractice claim. The first is that the facts asserted in that suit mirror those that were asserted by the debtor in opposing Ravin, Greenberg’s petition for counsel fees. That is only partially right, since the debtor objected strenuously to the amount of time which Ravin, Green-berg included in its fee application. In any event, the debtor was obliged to the creditors to call to the bankruptcy court’s attention reasons why the request for attorney’s fees was excessive, thereby preserving for the creditors as much of the estate as possible. There would be no policy reason to penalize a debtor who does so by depriving it of its otherwise available jury trial on its claim for affirmative damages. Moreover, the majority’s reasoning runs counter to the principle expressed by the Supreme Court in Ross v. Bernhard, 396 U.S. 531, 538, 90 S.Ct. 733, 738, 24 L.Ed.2d 729 (1970), that “legal claims are not magically converted into equitable issues by their presentation to a court of equity,” quoted favorably in Granfinanciera, 492 U.S. at 52, 109 S.Ct. at 2796.
The other reason given by the majority appears to be one of parity, based on the reasoning that inasmuch as the attorneys would be refused a request for a jury trial on the malpractice action because they filed a claim for fees, there is no reason to treat the debtors’ request differently. As I noted above, there is some question whether the attorneys’ claim for fees is comparable to a creditor’s pre-petition claim, and therefore it is still an open question whether the reasons given to deny a creditor a jury trial on the consequential fraudulent preference action would also apply to attorneys.
More compelling is the reasoning by this court in Beard v. Braunstein, 914 F.2d 434, 435-36 (3d Cir.1990), where the bankruptcy trustee filed an adversary proceeding to recover rent. The non-creditor defendant sought a jury trial on his counterclaim seeking, inter alia, damages. After deciding that the rent recovery claim was legal in nature, we examined whether “Congress [could] assign [the] claim to a non-Article III adjudicative body that does not use a jury as a factfinder.” Id. at 439. In the course of concluding that the defendant was entitled to a jury trial, we stated that “[the debtor’s] action does not merely ‘resemble a state-law contract [action] brought by a bankrupt corporation to augment the bankruptcy estate’ — it is such an action. Accordingly, it is clearly a matter of private right and we therefore conclude that [defendant] was entitled under the Seventh Amendment to the jury trial he sought on [debtor’s] claim for rent.” Id. at 441. The majority has not distinguished Beard on any basis that I find persuasive. Surely it could not be on the ground that the claim there was noncore, since this court expressly stated in Beard that the right to a jury trial is not dependent on whether the claim is considered to be core or noncore. See id. at 437.
y.
The Supreme Court has never dealt with the precise issue we have before us now and, as the majority points out, it is a question of first impression for this court. Whenever confronted with a Seventh Amendment right to a jury trial issue, we should be mindful that it is an important constitutional right that should not be taken away lightly:
Maintenance of the jury as a fact-finding body is of such importance and occupies so *1260firm a place in our history and jurisprudence that any seeming curtailment of the right to a jury trial should be scrutinized with the utmost care.
Chauffeurs, Teamsters & Helpers, Local No. 391 v. Terry, 494 U.S. 558, 565, 110 S.Ct. 1339, 1344, 108 L.Ed.2d 519 (1990) (quotations omitted). Because I would find that the Billings have a Seventh Amendment right to a jury trial on their malpractice claim, I would affirm the order of the district court denying Ravin, Greenberg’s motion for a referral, dismissal, abstention or stay.2
SUR PETITION FOR REHEARING
May 23, 1994
Before: SLOVITER, Chief Judge, BECKER, STAPLETON, MANSMANN, GREENBERG, HUTCHINSON, SCIRICA, COWEN, NYGAARD, ALITO, ROTH, and LEWIS, Circuit Judges, and RESTANI, Court of International Trade Judge *.The petition for rehearing filed by appel-lees in the above-entitled case having been submitted to the judges who participated in the decision of this Court and to all the other available circuit judges of 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.
Chief Judge SLOVITER and Judges MANSMANN, GREENBERG, HUTCHINSON, COWEN and ROTH would have granted rehearing.
. Because the parties have conceded that the Billings’ malpractice claim is core, I have assumed so arguendo. A different conclusion might be reached were that analyzed more closely-
. The majority has avoided deciding whether the bankruptcy court may conduct a jury trial. In light of the posture of this case, I withhold my views on that issue.