Podberesky v. Kirwan , 46 F.3d 5 ( 1994 )

ORDER

There having been two petitions for rehearing filed in this ease, 38 F.3d 147, one by the defendants, Kirwan, et ah, the other by the defendant-intervenors, Monica Green, et al., upon a request for a poll of the court on both of the petitions for rehearing en banc, there voted in favor of rehearing en banc Judges Ervin, Murnaghan and Michael, and there voted to deny rehearing en banc Judges Russell, Widener, Hall, Wilkinson, Wilkins, Niemeyer, Hamilton and Williams.

It is accordingly ADJUDGED and ORDERED that the petitions for rehearing en banc shall be, and they hereby are, denied.

The panel has considered the petitions for rehearing and is of opinion they are without merit.

It is accordingly ADJUDGED and ORDERED that the petitions for rehearing shall be, and they hereby are, denied.

On account of a possible ambiguity, however, in the footnote on page 162 of the opinion, that footnote shall be, and it hereby is, rewritten to read as follows:

With the concurrences of Judge Wilkins and Judge Hamilton.

/s/ H.E. Widener, Jr.

H.E. WIDENER, JR.

For the Court^*

* Podberesky has not asked for relief against the intervenors who have been awarded Banneker scholarships prior to this decision, therefore, none will be awarded against them except taxable costs and attorneys fees. Podberesky, also, has not asked for relief against any other student who has been awarded a Banneker scholarship prior to this decision; therefore, this decision has no effect on such students. We note that attorneys’ fees are not awarded as a matter of course against unsuccessful intervenors, see Independent Federation of Flight Attendants v. Zipes, 491 U.S. 754 [109 S.Ct. 2732, 105 L.Ed.2d 639] (1989), and we express no opinion as to whether or not the district court should make such an award on remand.

* Judges Luttig and Motz did not participate in this

decision.