dissenting:
I respectfully dissent and suggest that the majority of this court, as did the majority of the district court, has misread Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980). The three-judge district court in Consumers Union of the U. S. v. American Bar Association, 505 F.Supp. 822 (E.D. *223Va.1981) referring to Consumers Union II1 stated at 823:
The Supreme Court vacated the award of attorney’s fees because it rested in part on consideration of the Virginia Court’s adoption, and retention even after Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977), of the disputed disciplinary provision — actions the Supreme Court held to enjoy absolute legislative immunity.
I do not read Consumers Union II as indicating that the attorney’s fees awarded by the district court rested in part on its legislative-rule making role. The fees awarded by the three-judge district court rested entirely upon the rule making function of the Virginia Court and the court’s enforcement role was not discussed prior to the decision in Consumers Union II. The U. S. Supreme Court did not find that the Virginia Court was liable for attorney’s fees in its direct enforcement role or that such enforcement role played any part in awarding of fees. If this had been the finding, the court would have either affirmed or would have remanded with directions to the district court to find a proper fee.
The Supreme Court did neither, but stated at page 738:
We are unable to agree that the attorney’s fees should have been awarded for the reasons relied on by the district court. Although the Virginia Court and its chief justice were subject to suit in their direct enforcement role, they were immune in their legislative roles. Yet the district court’s award of attorney’s fees in this case was premised on acts or omissions for which appellants enjoyed absolute legislative immunity. This was error.
At 739,100 S.Ct. at 1978 the court makes it equally clear that the court’s enforcement role was not a part of the prior fee award:
Because the Virginia court is immune from suit with respect to its legislative functions, it runs counter to that immunity for a district court’s discretion in allowing fees to be guided by considerations centering on the exercise or nonexercise of the state court’s legislative powers.
The court went on to say:
This is not to say that absent some special circumstances in addition to what is disclosed in this record, a fee award should not have been made in this case.
Therefore, the Supreme Court must have remanded for reconsideration of the enforcement role based upon something that was not in the existing record. With no addition to the record, the district court found that the Virginia Supreme Court was liable solely upon its enforcement role under the statute.
There is a difference between a statement by the Supreme Court that a party is subject to suit and a conclusion by the court that such party is liable as a result of the suit. The majority of the district court, and the majority of this court, seem to have crossed the chasm between being subject to suit and liable as a result of the suit without pausing to find what the party did to become liable.
The only allegation in the complaint relating to the Supreme Court of Virginia reads:
Defendant Supreme Court of Virginia adopted and promulgated the State Bar Code, purporting to act under authority of § 54-A8 of the Virginia Code.
There is no contention that the Virginia Court used or threatened to use its enforcement power against Consumer’s Union or any member of the Virginia Bar for supplying information to Consumers Union.
Without some finding that the Virginia Court has used its “direct enforcement role” I do not see how it can be held responsible for attorney’s fees under the language of the Supreme Court in Consumers Union II.
*224I find myself totally in agreement with the conclusion of Judge Warriner in his dissent:
In summary, I believe it is an abuse of discretion to award attorney’s fees against the Virginia Court for not doing that which it was not alleged to have done; for not doing that which it was not proved to have done; for not doing that which, as against plaintiffs, it could not have done; and for not doing that which, in practice, it rarely does. Such an award would do nothing to further the purposes of § 1988 to encourage “private attorney general” suits. Rather, an award against the Virginia court in its so-called enforcement role, based upon the record in this case, would simply be a determination that the fee should be paid by the Virginia court without regard to the justice of the case. 505 F.Supp. at 829.
For the past, three years this suit has been nothing but an effort by the plaintiff’s attorneys to establish a theory upon which they could collect a fee. In the spring of 1979 the last possible impediment to gathering the information and publishing the Attorney’s Directory for Arlington County was removed. However, when this case was argued in November 1981 the directory had not been printed or distributed. As a result of numerous questions by the court to the attorneys for Consumers Union, the information has been gathered and the directory published. A copy of the directory was forwarded to this court on June 15, 1982. It contains the names of 78 attorneys in Arlington, Virginia. This action has made three trips to the United States Supreme Court, and is presently on its way back to the Supreme Court, all to produce 78 names.
I would affirm the district court’s finding that special circumstances rendered a fee award unjust as against the Virginia State Bar for the reasons set forth in the district court’s opinion.
I am concerned by and dissent from footnote No. 2 of the majority opinion of this court which seems to indicate that the attorneys are entitled to fees for all services rendered, even those services in pursuing an invalid theory of the law. The district court was very careful to state that the attorney’s fees would be “for services of its counsel in this action in so far as such services were performed to prevent the enforcement of the Rule.” It is obvious from the record that these attorneys did not even consider enforcement until this case was almost concluded and then had the matter of enforcement called to their attention by the United States Supreme Court. I am uncertain in reading the majority opinion as to whether the attorney’s fees shall be restricted to prevention of enforcement of the Rule or whether the attorneys are to be compensated for all services performed from the beginning of this litigation.
I would remand the case to the district court with instructions to expand the record and determine whether the Virginia Court ever exercised its direct enforcement role.
. This is a 1980 decision of the Supreme Court and so designated as to keep down confusion with Consumers Union I, decided in 1977, and Consumers Union III, decided in 1981. I assume there will be a Consumers Union IV at some date in the future.