(dissenting in Appeal No. 72-1233).
I dissent from the affirmance of the sentence for criminal contempt because I do not believe the government may circumvent the provisions of a criminal statute, 29 U.S.C. § 216(a),1 which specifically limit imposition of the sentence of incarceration for wilful violation of *1156the Fair Labor Standards Act, by proceeding in criminal contempt of a civil injunction.
There is no dispute concerning the chronological facts of this case. In 1959, William Fiore consented to an injunction which affirmatively required him to pay overtime compensation and keep records as required by law. He violated the terms of this injunction and, in 1962, consented to a decree of civil contempt. Again, in 1965, he was found to have violated the terms of the injunction, and was held in civil and criminal contempt. The instant proceedings emanate from still a third violation of the terms of the injunction. Thus, it can scarcely be contended that Fiore’s conduct did not qualify as “willfully violating] any of the provisions of section 215,” and I do not suggest that it did not.
• In the government’s “detailed findings and conclusions [which were incorporated] in the District Court’s Memorandum Opinion at its request,” it was the government’s position that Fiore “is again in criminal contempt for willfully and flagrantly violating the lawful orders of this Court and [Sections 6, 7 and 11(c) of the Fair Labor Standards Act, 29 U.S.C.].”
Moreover, in his opening statement at the hearing, Steven K. Ernst, the government prosecutor, stated:
We will submit, Your Honor, that the Government intends to prove that Mr. Fiore has willfully violated the judgment and the civil contempt — the civil and criminal contempt and we suggest that the only possible remedy in a situation like this is to show Mr. Fiore that this Court and the Government should not be taken so lightly, we suggest a very heavy fine and the possibility of a jail sentence at Your Honor’s discretion.
My quarrel with the government’s position, the district court’s acceptance of the government’s request that Fiore be imprisoned, and the majority’s affirmance of this jail sentence, is that I read the Fair Labor Standards Act as providing that a wilful violator of the Act’s provisions may not be sentenced to jail unless he has been previously convicted in a criminal proceeding under § 216(a). Since the government never elected to proceed by criminal indictment, but relied only on the civil and criminal contempt procedure, 18 U.S.C. § 401, the imposition of a jail sentence was contrary to law.
I am not persuaded by the contrary conclusion and rationale of the Fifth Circuit in United States v. Fidanian, 465 F.2d 755 (5th Cir.1972). There, the court held that “a limitation on a federal court's inherent power to punish violations of its own orders must be explicit.” 465 F.2d at 757. Because the court found that “[s]uch an explicit limitation cannot be found in Section 216(a), nor can one be implied from it,” it concluded that merely because an act may constitute both an indictable offense and a contempt does not afford a basis upon which to find a limitation on the contempt power. See Jurney v. MacCracken, 294 U.S. 125, 55 S.Ct. 375, 79 L.Ed. 802 (1935); United States ex rel. Brown v. Lederer, 140 F.2d 136 (7th Cir.), cert. denied, 322 U.S. 734, 64 S.Ct. 1047, 88 L.Ed. 1568 (1944).
The Fifth Circuit’s reliance on Jurney is misplaced. Admittedly, Mr. Justice Brandéis therein stated: “Punishment, purely as such, through contempt proceedings, legislative or judicial, is not precluded because punishment may also be inflicted for the same act as a statutory offense.” 294 U.S. at 151, 55 S.Ct. at 380. However, this language must not be considered apart from certain important considerations present in that case and emphasized in the opinion, and not present in the case before us.
At issue in Jurney was the power of Congress to hold one in contempt for refusal to answer or produce papers in the face of a statute making such refusal a misdemeanor. Enactment of the criminal statute, according to Justice Bran-déis, was prompted “because imprisonment limited to the duration of the *1157[Congressional] session was not considered sufficiently drastic a punishment for contumacious witnesses.” Thus, the criminal statute, R.S. § 102, extended the amount of punishment available. In the case at bar, the statute limited the punishment, precluding incarceration for the first “violation of the subsection.”
Moreover, present in Jurney was the phenomenon of two jurisdictions having power to punish: one, the federal court; the other, the Congress. This occasioned Justice Brandéis to reflect: “As was said in In re Chapman, supra, [166 U.S. 661, 17 S.Ct. 677, 41 L.Ed. 1154] ‘the same act may be an offence against one jurisdiction and an offence against another; and indictable statutory of-fences may be punished as such while the offenders may likewise be subjected to punishment for the same acts as con-tempts, the two being diverso intuito and capable of standing together.’ ” 294 U.S. at 151-152, 55 S.Ct. at 380. This bipartite jurisdictional phenomenon is not present here. Here there is but one tribunal, the district court.
Similarly, Lederer has dubious prece-dential value because of various limitations inhering in the criminal statute there at issue. For its provisions to become effective, two preliminary exercises of administrative discretion were required. Indeed, the Lederer court purposely emphasized the discretionary features of the act: “The existence of the provision in subsection (b) permitting the Administrator to bring to the attention of the Attorney General, who in his discretion may institute appropriate criminal proceedings, does not preclude the right of a court to protect the dignity of its own injunction by punishing wilful and repeated violations of its order.” 140 F.2d at 138. No mandatory two-step discretionary prerequisites are necessary to activate provisions of the criminal statute at bar.
Returning to the facts of this case, an injunction was issued commanding the defendant to obey the provisions of the F.L.S.A. By its terms, the defendant was obliged to do no more than what was required of any law-abiding citizen under similar circumstances. The terms of the injunction imposed no restriction upon him other than those imposed upon the public at large by the provisions of the F.L.S.A. If he wilfully violated the injunction, he thereby wilfully violated the provisions of the statute. Yet, had Fiore been prosecuted under § 216(a), because he was not previously convicted of a violation of the F.L.S.A., he could not have been imprisoned. However, because the government proceeded under 18 U.S.C. § 401, the general contempt statute providing that the court has the “power to punish by fine or imprisonment, at its discretion,” Fiore received a jail sentence. Under these circumstances, may the government proceed by criminal contempt, where there is no limit to the use of incarceration, other than the length of the sentence, and defy the provisions of a criminal statute which explicitly limit incarceration to “an offense committed after the. conviction of such person for a prior offense under this subsection,” 29 U.S.C. § 216(a)?
The resolution to this apparent statutory dilemma lay not in holding that § 216(a) strips the district court of the power to vindicate wilful violations of its decrees. Nor is it suggested, as by the majority and Fidanian, that Congress contemplated imprisonment for conduct constituting a violation of an injunction, on the one hand, whereas, on the other, it expressly prohibited imprisonment for the identical conduct when examined in the context of an initial F. L.S.A. violation. Rather, a federal court’s contempt power, § 401, can be reconciled with the language of § 216(a) simply by regarding the latter provision not as a limitation on the court’s power to vindicate its authority, but merely as a restriction on the type of punishment to be meted out upon a finding of such contempt. That is, the district court could have imposed a fine on Fiore for violating its injunction. Thus, both the Fifth Circuit and the majority, in zealous haste to protect the contempt power, *1158brush with too broad a stroke, and hence fail to effect the ready reconciliation Congress intended.
The Fifth Circuit’s response to this seemingly obvious restriction on the type of punishment a court may impose under these circumstances once it exercises its unimpaired contempt power is the naked, conclusory statement: “Such an explicit limitation cannot be found in Section 216(a), nor can one be implied from it.” 465 F.2d 757.
I do not have the slightest difficulty in refusing" to accept this statement because, in my view, it is totally devoid of logic and bereft of reasonable statutory interpretation. When Congress provides that one cannot be imprisoned for a wilful violation of the Fair Labor Standards Act unless one has been previously convicted under a specific subsection, I find it disingenuous to suggest that the language of § 216(a) is not an explicit statutory exception to the general power to imprison for contempt for committing the same act.2
The majority has confused that punishment permitted in contempt proceedings under § 401 with that provided for criminal prosecutions under § 216(a). Under the latter there may be incarceration only “after the conviction of such person for a prior offense under this subsection.” True though it may be that Fiore is a veteran wilful violator of the terms of a civil injunctive decree, until such time as he is prosecuted and convicted under the criminal statute, § 216(a), he may not go to jail. Congress has so declared in no uncertain terms.
Accordingly, I dissent and would vacate that portion of the sentence in the criminal contempt proceedings ordering incarceration.
. Any person who willfully violates any of the provisions of section 215 of this title shall upon conviction thereof be subject to a fine of not more than $10,000, or to imprisonment for not more than six months, or both. No person shall be imprisoned under this subsection except for an offense committed after the conviction of such person for a prior offense under this subsection.
. This reasoning is similar to that employed in our 1950 case of Cooper v. Hutchinson, 184 F.2d 119 (3d Cir. 1950), where this court found the Civil Rights Act, 42 U.S.C. § 1983, to be an explicit statutory exception to the Anti-Injunction Act, 28 U.S.C. § 2283, an interpretation adopted by the Supreme Court in Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972). I find no more explicitness contained in the language of § 1983 to qualify it as an exception to § 2283, than is present in the clear and unambiguous language of § 216 (a).