with whom JOHN R. BROWN, Chief Judge, and GOLDBERG, Circuit Judge, join, dissenting.
With deference I dissent. I cannot agree to what I consider to be a tragically wrong disposition of the claim of nearly 15,000 Florida state prisoners to be afforded sim*553pie, humane treatment. After four and a half years of litigation, one year of which has been consumed in this Court, the Court now concludes that all was a nullity because the order entered by the trial court required a reduction of overcrowded prison facilities to meet constitutional standards on a schedule that might at some future date require the defendant Wainwright to violate state statutes or disobey the court’s order. So fruitless and wasteful a result as this comes in spite of the fact that as fully demonstrated in the court’s original opinion, Costello v. Wainwright, 525 F.2d 1239, every essential fact on which the trial court based its order was conceded by the appellant.
As pointed out in the earlier opinion, there was nothing in the trial record that would support the thesis that the trial court’s order “would inexorably condemn” any Florida statute, the standard established in our case of Newman v. State of Alabama, (5th Cir. 1974) 503 F.2d 1320, to enable the court to determine whether a three-judge court is required.
Even were this not the case, the appellant, in a document entitled “Supplement to Record” filed at the time of the oral argument before the en banc Court, demonstrates that the likelihood of Wainwright’s ability to carry out the Court’s order without violating any state laws is greatly enhanced. This document, which, regardless of whatever other significance it may have, is at least binding on the appellant, recites that:
“Facilities presently available to appellants are staffed and otherwise accommodated for housing up to 17,091 persons. Currently there are 16,267 inmates housed in said facilities. Although the figure of 17,091 is indicated as maximum [emergency] capacity, appellants are able to expand the capacity of presently available facilities if necessary by adding temporary staff and other necessary physical plant facilities on a relatively short notice.” (Emphasis added.)
The trial court’s order requiring that inmate population be reduced in certain specified stages would not have required a reduction at the time of the filing of that document below the figure which it demonstrated Wainwright already had at his disposal.
The court’s opinion, no matter how phrased, seems to me to be based on the proposition that unless it is absolutely clear at the time the court’s order was issued that under no circumstances could it be complied with within the statutory limitations solely by action of the defendants themselves, the case called for a three-judge court. This is not the test. The test, as stated above, is that announced in Newman. An order of a trial court enjoining state action in a suit in which no state statute or rule or regulation is attacked as being unconstitutional would nevertheless require convening of a three-judge court “where the relief sought, if granted, would inexorably condemn those promulgated rules and regulations not specifically challenged. . . .” (Emphasis added.) 503 F.2d at 1326.
Of course, the Court, sitting en bane, can overrule Newman, but to do so it would have to reject the further view expressed in Newman:
“. . .to countenance the application of Sands [Sands v. Wainwright] to the instant case would work an unprecedented expansion of the jurisdiction of three-judge courts and would erode the customarily constrictive view of three-judge court jurisdiction which the Supreme Court had mandated. [Citations omitted.]”
Moreover, for any court to expand the jurisdiction of three-judge courts at this particular moment, especially in the situation where clear and manifest injustice is being done to parties seeking vindication of constitutional rights seems to me to be singularly inappropriate. Congress passed and the President signed on August 12, 1976, Public Law 94-381 which abolishes requirement of three-judge courts in situations now covered by §§ 2281 and 2282 of Title 28 U.S.C. To be sure, there is a savings clause in the Act so that it is not applicable to *554pending suits. However, with such a clear indication of Congressional purpose to abolish three-judge courts in this type of litigation completely, I cannot but dissent from a judgment by this Court which expands the range of cases which must still consume the time of three judges.
I, therefore, would reaffirm the judgment and decision of the panel of this Court affirming the judgment of the trial court. I, of course, concur in those parts of the opinion which deals with the non-operative part of the trial court’s order.