dissenting.
I agree in large part with the majority, with its statement of historical events, with its holding that appellate jurisdiction here is predicated on 28 U.S.C. § 1292(a)(1)1 and with its remand to the district court to complete the proceedings pending before it. I also agree that this protracted litigation should be completed as speedily as possible and thus should be accorded the very highest priority.
I disagree, however, with the majority’s mandate for two reasons. As to the first, which has to do with the form of the mandate, I believe that our difference is semantic. As to the second I believe that our difference is profound and significant.
I.
The majority’s mandate recites “Therefore, we vacate the July 30, 1980 order of district court and remand for proceedings consistent with this opinion. The mandate of this court shall issue forthwith.” (maj. op. at p. 981) In its prior paragraph, the majority states “... we order the district court to expedite its consideration of this case so that within ninety days of the issuance of the mandate of this court it shall:
1) complete all hearings and necessary proceedings on the merits of the competing remedial plans for the desegregation of GBASD;
2) decide the Milliken v. Bradley issue of which school districts may be included within an inter-district remedy; and
3) enter an appropriate final order granting appellants the relief to which they are entitled under the district court’s order of May 15,1973, such relief to be effective and implemented by the beginning of the first semester of the school year in the fall of 1981.”
(footnote omitted) Id. at 981.
The majority thus incorporates within its mandate a 90 day time limit.
My first dispute with the mandate is that some may regard this mandate as a reversal of the district court order rather than as an affirmance, which it is. Indeed Judge Higginbotham, himself a member of the majority discusses in Part I B of his concurring opinion, not the problem that I have raised of a 90 day limit, but rather the reactions of a district court judge when he is reversed.
In point of fact and law, the majority affirmed Judge Weber’s order of July 30, 1980. That order, which I reproduce in full in the margin, decreed the following:1a
(1) It denied the plaintiffs' request that the Tuition Plan and the tuition concept be rejected forthwith;
(2) It did so without prejudice to renewal of the hearings on the Tuition Plan;
(3) It denied the plaintiffs’ request for an injunction “affording them merger, or consolidation relief beginning in the Fall of 1980”;
(4) And it denied that injunction without prejudice.
*990What does the majority mandate do with respect to this order? It purports to vacate it! And then it remands for proceedings consistent with the majority opinion. And what does the majority opinion require? It requires precisely that which Chief Judge Weber provided in his July 30, 1980 order.
It requires the completion of “all hearings and necessary proceedings on the merits of the competing remedial plans” (maj. op. p. 981) a reference which obviously includes the Tuition Plan. I say “obviously”, because in Paragraph 31 of the majority opinion, the majority recites quite explicitly “We decline to grant appellants’ request that we require the implementation of merger or consolidation relief. We also decline at this time, to reject the concept of a Tuition Plan for GBASD. The primary duty to choose between these competing remedial plans rests with the district court.” (maj. op. p. 980.)
Thus, as I understand it, and I consider myself a member of the majority for all purposes other than subscribing to the 90 day deadline, we have affirmed and not reversed the district court’s order of July 30, 1980. By having cast our mandate in the form of “vacating and remanding” it appears to me that we have given an ambiguous direction, but one which has the same effect as a mandate which “affirms and remands”. What we intended, and what we have done, is to affirm the actions and order of the district court. We have then directed that the action be remanded to the district court to continue and complete the proceedings — the very action which the district court by its July 30, 1980 order contemplated and decreed.
Accordingly, so much of the concurring opinion which speaks to the issue of reversal and which interprets what I have said in this dissent as implicating reversals of district court orders, is without foundation and is irrelevant.
II.
My second and more fundamental dispute with the mandate is that it incorporates within it a 90 day deadline which it imposes upon the district court. Those few words “within 90 days of the issuance of the mandate” carry the seeds of great mischief and potential disruption.
Because of the significant implications which this latter portion of the mandate has, I will devote virtually the whole of this dissent to demonstrating that we have no power to issue such an order; that such an order is unwise and inadvisable even if we had that power (and we do not); and if we sought to exercise this non-existent power we would have no means to enforce compliance with our orders.
The majority’s mandate imposes a 90 day deadline upon the district court, (maj. op. p. 981). During that time, the district court must complete on order from our court, all matters and hearings pertaining to all plans and all proceedings. All issues, including the difficult and complicated Milliken v. Bradley2 issue must be resolved by the district court, and an appropriate order entered so that a remedial plan may be implemented in time for the school term commencing September, 1981. In this opinion, I address myself only to the advisability, propriety and power of the judges of this court to order another federal judge, in this case Chief Judge Weber of the Western District of Pennsylvania, to perform his judicial functions under a 90 day deadline.
I dissent from the majority in this regard because:
(1) Even if Chief Judge Weber had been the cause of the delays which have *991plagued this litigation (which he has not), I know of no power available to us to impose upon him, such a sanction or order. (see discussion at p. 989, supra.)3
A fair analysis of the litigation to this point reveals clearly that any delays that have been suffered have come about not because of Chief Judge Weber’s actions or inactions, but because of the litigants’ changing positions and improvident detours through this Court. Thus, in my view, even apart from considerations concerning our power to impose a 90 day order, any deadline order which decrees that the burden of compliance be placed on Chief Judge Weber, is misconceived and misdirected.
(2) I firmly believe that it is inadvisable, unseemly, injudicious, improper and unrealistic to establish, by order, any time frame in which a district court judge must perform his judicial functions. An order such as this one can only lead to resentment on the part of one of the most diligent, conscientious, and hard-working judicial cadres — the district court judges — in this country. Moreover, an order such as this one, which could, but hopefully will not, lead to other orders of this character must in the long run rupture the sensitive relationship among court members of different judicial echelons and indeed may well be regarded by many of them as demeaning and even insulting.
(3) I know of no power by which we can assert the right to impose such an order and once imposed, enforce such an order if compliance does not result. I deliberately do not address the subject of wilful non-compliance, because I do not believe that any district court judge, no matter what his reaction to such an order might be, would wilfully refuse to meet a deadline ordered by a higher court. Thus, I am not suggesting that a failure to comply would be wilful. I am fearful, however, that the requirements of the Speedy Trial Act compounded by the exigencies of the normal district court civil calendar4 which these days is crowded by competition for priority among different categories of statutory and constitutional cases, to say nothing of emergency applications and preliminary injunction proceedings and the fact that the district courts’ jury and non-jury calendars are planned months in advance — all militate against the probability that the 90 day mandate will be met. My fear is even greater in this particular case, because I recognize that Chief Judge Weber, in addition to the multitude of judicial matters to which he must attend as a functioning district court judge, must also deal with a multitude of intra-district administrative problems of not inconsiderable dimensions.
1. The Litigation Giving Rise to the 90 Day Mandate.
The majority opinion adequately and accurately sets forth the chronology of this action. To put my observations concerning the 90 day mandate in proper perspective, however, I think something more must be said respecting the reasons that this litigation has taken the length of time that it has. I do not intend to mention or dwell upon every aspect of this case, but I believe it is important to recognize that many, many months have literally been wasted by at least two improvident appeals5 and the *992recent decision of the plaintiffs to change direction in midstream. It must be remembered that the plaintiffs unremittingly urged the consideration of a Tuition Plan and then abruptly, after many months, reversed their position and argued for its rejection.
The Hoots IV appeal, 587 F.2d 1340, was taken from an order of the district court entered in 1977. Hoots IV did no more than deny the appealability of an order refusing to implement a particular plan, without prejudice to the submission of additional plans. Thereafter, as the majority opinion observes, the plaintiffs sought the submission and approval of a Tuition Plan, which they desired the Commonwealth to prepare and submit. Indeed, the plaintiffs went so far as to file an application for a Writ of Mandamus which asked this court to order the district court “to direct the state defendants to submit another interdistrict plan which would involve the use of tuition as a technique to remedy the problem ...” (emphasis added). Within a month the district court ordered that the Commonwealth prepare and file a Tuition Voucher Plan. Hearings were commenced. Approximately one year later and while these hearings were still proceeding, the plaintiffs apparently had a change of heart, which was evidently prompted by the addition of new counsel. At this time, despite their earlier insistence upon a Tuition Plan, they now argued to have the Tuition Plan rejected. When this was denied by the district court, the plaintiffs once again appealed to this Court. They did so despite the fact that the district court had not concluded the hearings and therefore had neither recommended nor disapproved the Tuition Plan nor any other plan which was “waiting in the wings.”
While I am sure that the majority would disclaim any intent to criticize the district court, my reading of its mandate leaves no doubt but that by its very nature, criticism is implied. It is evident that during the periods of time when appeals were proceeding before our court, the district court could take no action.6 Nor can the district court be faulted for seeking to complete the hearings that it had started and for refusing to commence simultaneously a different set of hearings involving an inter-district consolidation plan, until after it had completed taking evidence on the Tuition Plan.
I am satisfied that Chief Judge Weber is as concerned about the school children in the General Braddock Area School District as are we. I am convinced that he is as disturbed and upset over the length of these protracted proceedings as are we. There can be no question that he deplores, as do we, the fact that these school children have been obliged to endure schooling in what has been acknowledged as an unconstitutional environment, and that they are victims of the delays which have been caused by some of the circumstances which I have underscored. I am also convinced that Chief Judge Weber would be overjoyed if he could put the final touches to all these proceedings, not within 90 days, but even earlier, if such were possible. I can think of no one more than he who would want to be relieved of these very considerable issues by their resolution. I am certain that even without our suggestions, he has placed and will continue to place these hearings and this litigation on his court’s “most front burner”, and I am equally certain that there would be no one more pleased than he if a plan were in place in time for implementation by September, 1981. However to achieve that goal, it is not necessary to “order” his court to complete what is “un*993completable” within an arbitrary and artificial timeframe. It is this subject that I address next.
2. The Wisdom of a 90 Day Mandate.
Passing over for the moment the very critical issue of whether this court has the power to order Chief Judge Weber to comply with its mandate, I observe that by imposing a time limit on a district court judge, this court has usurped unto itself the district court’s scheduling functions, a matter which has traditionally and necessarily been committed solely to the district court.
As a former district court judge, I know the pressures under which district court judges operate and the very careful and meticulous scheduling of their cases. Jury cases are scheduled months in advance. So indeed are non-jury matters, although in some instances these can be squeezed into the open days or hours that occur when a jury trial or other proceeding is unexpectedly terminated or recessed. Moreover, with the dismissal sanction now in force under the Speedy Trial Act, a forced reorganization of a district court schedule could result in serious consequences leading possibly to the discharge of criminal defendants whose trials were not timely commenced. Interwoven throughout this complex of judicial functions are the multitude of motions, emergency and otherwise, which must be heard and decided; sentencings, preliminary hearings, and the preparation of opinions, — yes, and in many cases, service on this very Court of Appeals when our manpower needs have required it. Indeed, Chief Judge Weber sat as a member of a panel of this court within the past few months and is accordingly responsible for the opinions assigned to him which were generated by that sitting. In his particular case as Chief Judge, I have earlier noted that he must attend to many administrative matters from which other judges are freed.
I detail this listing, which is incomplete by far, only to illustrate the impracticality of ordering a district court judge to perform his tasks in a sound, conscientious, thoughtful and knowledgeable manner, limited however to a specific period of time, such as 90 days. I note for instance that this very appeal which was argued on November 3rd has taken more than 60 days to resolve by written opinion, and we, unlike the district court, had no evidentiary hearings, with all the uncertainties to which they are heir, confronting us. I would not like to hazard a guess as to the reactions of my colleagues on this court, if another court having the same lack of knowledge of our responsibilities and schedules as we have respecting Chief Judge Weber’s responsibilities and schedule, ordered us to complete a highly complicated hearing and file an opinion for ultimate implementation within a deadline of a limited number of days.
To this point I have not even mentioned those unforeseen circumstances, illness, accidents, emergencies, deaths, court conflicts, and the like, which could add to the time needed to complete the hearings and resolutions mandated to be completed within 90 days. I note only the profound practical considerations which up to this time have restrained Courts of Appeals from intruding upon the functions of the district court.
I have gone into some detail in setting forth these matters because I want to emphasize how very unrealistic and inadvisable this court’s mandate is. Hopefully, Chief Judge Weber will complete the tasks which the majority opinion requires him to complete, and will do so within 90 days.7 If he cannot because of his other commitments or because of the nature of the proceedings themselves, does he then transfer Hoots to another judge in the Western district, thereby losing his “investment” of some eight years? And if this may be the result of the 90 day mandate, is it realistic to assume that a new judge will have a plan in place for the September 1981 term? My own view of this matter is that intricate scheduling, such as is involved here, ought *994not to be supervised from the far reaches of a Court of Appeals chambers. Some cases take longer than others to complete, just by their very nature. If indeed this is one of those cases, then I suggest that less harm and mischief will result if we properly permit the district court to adjust its own schedule, once that court has been advised that the highest priority should be given to this case.
3. Enforcement.
I have attempted to explain why the history of this litigation and the inherent functions of the district court make it impractical and inadvisable for us to set a specific time limit for the discharge of particular district court functions. Until this point I have not referred to our power to order the district court to perform these functions within a timeframe. I am convinced that we have no such power, and any attempt to exercise such a nonexistent supervisory power can only result in embarrassment or disaster. Thus by having ordered this district court judge to perform and complete all Hoots matters pending before him in no longer than 90 days we have committed an almost unprecedented intrusion upon judicial independence.8
Justice Douglas, dissenting in Chandler v. Judicial Council, 398 U.S. 74, 90 S.Ct. 1648, 26 L.Ed.2d 100 (1970) referred to this very subject. He did so in the context of an action brought by a district court judge who had his caseload stripped from him because he was unable or unwilling to discharge efficiently the duties of his office. Judge Chandler was not directed, as the majority has directed Chief Judge Weber, to perform discretionary functions within a specified time limit. In the course of his dissenting opinion, Justice Douglas made these observations which are every bit as pertinent today:
An independent judiciary is one of this Nation’s outstanding characteristics. Once a federal judge is confirmed by the Senate and takes his oath, he is independent of every other judge. He commonly works with other federal judges who are *995likewise sovereign. But neither one alone nor any number banded together can act as censor and place sanctions on him. Under the Constitution the only leverage that can be asserted against him is impeachment, where pursuant to a resolution passed by the House, he is tried by the Senate, sitting as a jury. Art. I, § 2 and § 3. Our tradition even bars political impeachments as evidenced by the highly partisan, but unsuccessful, effort to oust Justice Samuel Chase of this Court in 1805. The Impeachment Provision of the Constitution indeed provides for the removal of “Officers of the United States,” which includes judges, on “Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” Art. II, § 4.
What the Judicial Council did when it ordered petitioner to “take no action whatsoever in any case or proceeding now or hereafter pending” in his court was to do what only the Court of Impeachment can do. If the business of the federal courts needs administrative oversight, the flow of cases can be regulated. Some judges work more slowly than others; some cases may take months while others take hours or days. Matters of this kind may be regulated by the assignment procedure. But there is no power under our Constitution for one group of federal judges to censor or discipline any federal judge and no power to declare him inefficient and strip him of his power to act as a judge.
The mood of some federal judges is opposed to this view and they are active in attempting to make all federal judges walk in some uniform step. What has happened to petitioner is not a rare instance; it has happened to other federal judges who have had perhaps a more libertarian approach to the Bill of Rights than their brethren. The result is that the nonconformist has suffered greatly at the hands of his fellow judges.
The problem is not resolved by saying that only judicial administrative matters are involved. The power to keep a particular judge from sitting on a racial case, a church-and-state case, a free-press case, a search-and-seizure case, a railroad case, an antitrust case, or a union case may have profound consequences. Judges are not fungible; they cover the constitutional spectrum; and a particular judge’s emphasis may make a world of difference when it comes to rulings on evidence, the temper of the courtroom, the tolerance for a proffered defense, and the like. Lawyers recognize this when they talk about “shopping” for a judge; Senators recognize this when they are asked to give their “advice and consent” to judicial appointments; laymen recognize this when they appraise the quality and image of the judiciary in their own community.
There are subtle, imponderable factors which other judges should not be allowed to manipulate to further their own concept of the public good. That is the crucial issue at the heart of the present controversy.
All power is a heady thing as evidenced by the increasing efforts of groups of federal judges to act as referees over other federal judges.
398 U.S. 136-37, 90 S.Ct. 1648, 1680, 26 L.Ed.2d 100 (footnotes omitted).
Justice Douglas concluded his observations by saying:
It is time that an end be put to these efforts of federal judges to ride herd on other federal judges. This is a form of “hazing” having no place under the Constitution. Federal judges are entitled, like other people, to the full freedom of the First Amendment. If they break a law, they can be prosecuted. If they become corrupt or sit in cases in which they have a personal or family stake, they can be impeached by Congress. But I search the Constitution in vain for any power of surveillance that other federal judges have over those aberrations. Some of the idiosyncrasies may be displeasing to those who walk in more measured, conservative steps. But those idiosyncrasies can be of no possible constitutional concern to other federal judges.
*996398 U.S. 140-41, 90 S.Ct. 1648, 1682, 26 L.Ed.2d 100 (footnote omitted).
Although these remarks were written in dissent, none of the other Justices in Chandler either refuted, or took issue with them. These principles lead inexorably to the conclusion that in circumstances such as are present here, we have neither the right nor any power to order Chief Judge Weber to complete his processing of this case within a time limit of 90 days. If there is such a right or power, I do not know from whence it stems,9 and absent such a power, there is no reason for a federal judge to give heed to our mandate.
Such a consideration, I am sure, would never cross Chief Judge Weber’s mind. I am certain that all of us know, that even if he were to endanger his own health in so doing, he would make every effort to meet the time strictures which the majority, in my view, has so improvidently imposed upon him. Yet, if despite these efforts, he cannot, or does not, do we hold him in contempt? Do we subject him to some form of disciplinary proceeding? Do we remove his caseload? Do we hold a hearing and ask him to show cause why he has violated the 90 day mandate? What action can we take? And should we as a Court of Appeals point a gun without the ability to pull its trigger? I recognize that the illustration is extreme, but it conveys my feeling that one should not order what one cannot enforce. To do so can only lead to embarrassment on our part, or to put the matter colloquially, I fear we shall end up with “egg on our face.” Even worse, from the standpoint of the district court, is the humiliation of being ordered to do that which is “undoable”. The order itself carries with it a flavor of opprobrium and, to the extent that it implies our disapproval of the district court’s prior actions, it carries with it a stigma that will be difficult to erase.
I ask additional questions. Does a mandate such as the majority has imposed anticipate that if the tasks to be accomplished cannot be completed in the judge’s normal, competent, workmanlike manner, is he to rush the hearings (with all that such haste implies), skimp on the decisional processes, and produce a product which may not withstand constitutional or appellate scrutiny? If so, what have we accomplished in our efforts to expedite a school plan?
Finally, even if Chief Judge Weber could, and does, accomplish the impossible and furnish us with a complete resolution of all issues within 90 days, I am convinced that this would have been accomplished in any event and without the reproach implied by the majority’s direction.
III.
Before concluding this dissent I feel obliged to answer some of the irrelevant arguments found in the concurring opinion.
Unfortunately the author of the concurring opinion in his understandable zeal to solve the school problems in the General Braddock District as soon as possible, has misread both the majority opinion in which he has joined, and my dissent. Thus, he seemingly has failed to understand that the majority opinion does not reverse the district court, see pp. 989-990, supra, but rather affirms it. He has also failed to understand that my third reason for dissenting is not because I find a “90 day requirement ... too restrictive”, (concurring op. p. 982), but rather because I know of no means by which any such time limit may be enforced (see pp. 994-996, supra).
Finally, Judge Higginbotham fails to understand that the only disagreement I have with the majority is with its imposition of a specific deadline on a district court judge. Thus, the examples which he cites of instances where Courts of Appeals have acted themselves or have directed the district courts to engage in ministerial actions, are completely inapposite. Judge Higginbotham refers in his opinion (concurring op. p. *997982) to cases where Courts of Appeals have granted injunctions at the Court of Appeals level. Such actions obviously have nothing to do with a Court of Appeals order which commands that a district court deal with discretionary and evidentiary matters within a particular time frame.
In my dissent I have not addressed the power of a Court of Appeals either to enter an order itself or to order a district court to perform a non-discretionary ministerial act, because this case involves neither. Thus the relevance of Judge Higginbotham’s observations concerning such circumstances escapes me. I note, however, that if such a circumstance was relevant, which it is not, Judge Higginbotham could have referred to this court’s opinion in Evans v. Buchanan, 582 F.2d 750 (3d Cir. 1978), to illustrate his thesis. In Evans, supra, this court ordered the district court to enter a particular order, but that order had first been drafted by the Court of Appeals and nothing remained to be done except to have it entered. Had the district court failed or refused to follow our direction to perform this ministerial act, we could not have compelled it. Obviously, however, this court had the power to enter that order itself, had it become necessary. This, however, is not the situation which is at issue here.
In this case Judge Higginbotham could have voted to have an order entered by this court. He could have voted to have granted to the plaintiffs the relief that they sought and he could have voted to afford that relief at the Court of Appeals’ level. And if he felt, as he evidently does, that the particular nature of this litigation is such that it required this court, rather than a district court to hold hearings or to enter a remedial order without holding hearings, he could have so voted. He did not. Rather, Judge Higginbotham joined the majority and voted to return this case to the district court so that the district court judge could continue the hearings that he, the district court judge, had ordered, and in so doing could perform his proper function of taking evidence and fashioning a remedial plan. Accordingly, Judge Higginbotham's exhortations about what has been done in other courts and what should have been done in this case totally miss the mark.
Of more concern to me than Judge Higginbotham’s lack of understanding of the difference between actions taken by a Court of Appeals itself and those actions which it orders a district court to perform within a prescribed time limit, is the assertion by Judge Higginbotham that this court has the power to supervise the activities of a district court judge in his functions and that we may exercise that power on an hour-to-hour and day-to-day basis.
I note with considerable interest that nowhere in Judge Higginbotham’s opinion, however, does he furnish for our guidance and edification any authority from which this power emanates. Nor does he refute the analysis of Justice Douglas in Chandler, supra, (see pp. 994-995 of this dissent, supra) which concludes that there is no such power to be found anywhere in our Constitution or statutes. I assume that if Judge Higginbotham knew of such authority, he would have cited it. He does not, because none exists.
In this connection, therefore, it is of no help whatsoever to have the concurring opinion direct us to Bell v. Maryland, 378 U.S. 266, 84 S.Ct. 1814, 12 L.Ed.2d 822 (concurring op. p. 988) which holds no more than that where an intervening state statute made it unlawful for restaurants to deny services to individuals because of their race, the proceeding had to be remanded to state court for reconsideration in light of that statute. Justice Douglas whose concurrence in that case urged the Court to reach the merits of the plaintiffs’ claims and reverse their convictions outright, is apparently cited by Judge Higginbotham as authority for the presence of our power over district court judges.
I make two observations. If Judge Higginbotham is urging us to reach the merits of the plaintiffs’ claims in this case, he has abandoned that battle himself, for as I have mentioned, he has voted to affirm Chief Judge Weber’s order and to remand for further proceedings. My second observa*998tion is that Bell v. Maryland does not even address, let alone establish, the power of a superior court over the activities and functions of district court judges. One can look long and hard through the Bell opinion and not find even a reference to a district court judge. This is completely understandable, as that case came before the Supreme Court from the Maryland state court. I therefore question its relevance in the instant context.
I will make just a few more comments about Judge Higginbotham’s disagreement with my thesis.
First, I concede that if Judge Higginbotham had been a member of the Hoots IV panel, he would have agreed with Judge Gibbons’ approach that the Hoots IV order was appealable. That was the only issue decided in Hoots IV, i. e., whether this court had jurisdiction of the appeal. A majority of the panel held that it did not. Thus, Judge Higginbotham’s espousal of Judge Gibbons’ dissent in that case reflects no more than a difference of opinion as to what constitutes a final or injunctive order from which an appeal may be taken.
Second, the concurring opinion refers to our recent Kennecott10 decision as demonstrating this court’s ability to deal with an emergent matter and to deal with it in a remarkably short time. Its thesis apparently is that if the Court of Appeals can operate expeditiously, there is no reason why a district court judge cannot. However, Judge Higginbotham overlooks one salient fact: what this court may do has no bearing upon what the district court does, or upon the district court’s commitments, its functions and our power to order that court to conform to our dictates.
I suggest that it is illogical to extrapolate from our discussion of “delay” in Kennecott, the principle that we can impose a 90 day deadline in Hoots. Nevertheless, if someone more astute than I, can discern a relationship between the principles enunciated in a Securities Regulation case and the power to supervise a district court judge, I still find that Judge Higginbotham’s concurrence in this respect defies reason. He states, “[i]f in corporate cases this court is willing to expedite its own procedures so dramatically to reduce judicial consideration by several months, I fail to understand why we may not require a district court judge to decide a case in three months when he has it for almost ten years.” I can only suggest that this dissent has gone into considerable detail in order to explain why we cannot.
Third, Judge Higginbotham’s references to our Internal Operating Procedures and the time limits which we have voluntarily imposed upon ourselves are as irrelevant to the issue here as his other arguments (concurring op. p. 983). I have no problem if a district court judge voluntarily imposes a deadline upon himself, any more than I have any problem with the members of our court voluntarily imposing deadlines upon themselves whether for the circulation or the preparation of their opinions, or otherwise. A problem would be presented, however, if either the Congress, or the Supreme Court, or the President, were to direct us to prepare and file all of our opinions within a specified time limit, for example, 45 days.
In the first place, they would have no power to do so. Second, it would be inadvisable. Third, there would be no means at their disposal, short of impeachment, for them to enforce such a command. Thus, there is just no logical nexus that can be perceived between a voluntary self-imposed deadline and a 90 day mandate such as the majority has imposed in this case.
Finally, I suggest that the references made in the concurring opinion to other than the 90 day deadline imposed by the mandate, are irrelevant. Thus, I do not find it necessary to address each and every feature of the concurrence because as I have indicated, not one of them focuses on the questions to which the mandate’s 90 day order has given rise:
(1) Does this court have either statutory or constitutional power to order a district court judge to perform his judicial *999functions within any set period of time where the district court’s functions to be performed are discretionary, evidentiary and nonministerial in character;
(2) if so, from where does that power come and what are the parameters of that power;
(3) even assuming the presence of this power, (a power I do not believe we have and nothing that Judge Higginbotham has written persuades me otherwise) is it advisable and realistic to exercise that power over a district court judge and his functions; and
(4) if we have such a power and if it is advisable to exercise it, can we enfprce compliance?
I have answered these questions in this dissent. I have said we do not have the power; it is not advisable to exercise the power even if we had it, and if we have the power and did act to exercise it, we could not enforce it. There is nothing that appears in Judge Higginbotham’s concurring opinion which alters these conclusions.
IV.
I regret having written at such length on a subject which superficially, at least, appears to be a small part of the mandate, but which in reality has profound implications, which I believe even dwarfs the basic issues before us. Because its significance in terms of judicial independence and judicial relationships cannot be ignored, I cannot subscribe to, or let go unanswered, this aspect of the majority mandate which I regard as improvident, unadvisable, unrealistic, dangerous and unenforceable. I, for one, reject the notion that the members of this court can “arrogate to themselves” and exercise such powers over the federal district court judges, particularly since no authority to do so is to be found in our Constitution or laws. See Chandler, supra, p. 10 at 142, 90 S.Ct. at 1683 (Black, J., dissenting).
I therefore respectfully dissent from so much of the mandate as imposes a fixed time period upon Chief Judge Weber for the completion of the Hoots proceedings.
. Hoots v. Commonwealth of Pennsylvania, 587 F.2d 1340 (3d Cir. 1978) (Hoots IV) disposes of any contention that the order from which this appeal is taken could be the predicate for final order jurisdiction under 28 U.S.C. § 1291.
. ORDER
AND NOW, this 30th day of July, 1980, it is HEREBY ORDERED and DECREED that:
1. Plaintiffs’ request of July 30, 1980, that the Tuition Plan and the tuition concept be rejected forthwith is DENIED, without prejudice to its renewal at the end of the hearing on said Plan.
2. Plaintiffs’ request of July 30, 1980, that this Court grant them an injunction affording them merger, or consolidation relief beginning in the fall of 1980 is DENIED, without prejudice.
. The Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974) (Milliken I) issue, which the district court must resolve, involves the question of which districts are to be included in a remedial plan. For example, the Churchill district has steadfastly maintained the under MiUiken I, it cannot be regarded in the same fashion as those districts which were created simultaneously with the General Braddock Area School District. See Hoots IV at 1342 n.5. The district court has ordered briefing on this issue, but it is unclear whether evidentiary hearings must still follow. The resolution of this issue is apparently the key to any interdistrict remedy.
. The majority, as I do, recognizes, as it must, that Chief Judge Weber has “valiantly and ably wrestled with the complex issues of this case since 1971.” (maj. op. p. 981, n.25).
. The 1980 Annual Report of the Director of the Administrative Office of the United States Courts notes that in 1980 civil cases filed in the U. S. district courts have continued to rise to a point that the filings were more than 9% above the 154,666 cases filed in 1979, and 93.3% over the civil filings reported in 1970. As of June 30, 1980 pending civil cases numbered 186,113, more than 8,000 over the number recorded one year earlier (p. 2-3).
. I do not take the position that the plaintiffs did not have the right to appeal. All litigants have the right to do what they believe is best in order to further their interests and that includes taking appeals to this court, even when in so doing, substantial delays in the ultimate resolution of their problems ensue. I do mean to emphasize that the delays which the majori*992ty now seeks to attribute to the district court, even though it transparently disclaims that intention in its footnote 25, are delays wholly caused by litigational strategies. Thus, if a generation of school children has gone through the school system in this district under circumstances which have violated their constitutional rights, that delay may not be attributed to Chief Judge Weber.
. Despite the fact that jurisdiction of these proceedings was in this Court, we note that during the pendency of this appeal, the district court in an effort to conclude these proceedings, did, in fact, continue them at least through November 13.
. The same evils that lurk in a 90 day mandate are equally present in a mandate specifying any particular deadline. Thus 1 would have the same objection if the mandate here limited the district court in the discharge of its functions to 120 days, 200 days or 240 days, etc.
. I know of no other instance, in this Circuit, when an order was fashioned with a specific time limit. Even in Kelley v. Metropolitan County Board of Education of Nashville, Tennessee, 436 F.2d 856 (6th Cir. 1970), a case relied upon by the dissent in Hoots IV, no such deadline mandate was imposed. Kelley, which held that final order appellate jurisdiction vested in an appellate court under the circumstances of that case, involved school segregation issues that had lingered for fifteen years, id. at 858, and had been subject to an order which stayed all proceedings for an indefinite time. Yet, even in that egregious circumstance, no specific time limit was mandated during which the district court was to perform its functions.
The majority opinion here, however, calls attention to Anderson v. Dougherty County Board of Education, 609 F.2d 225 (5th Cir. 1980), in which a sixty day time limit was imposed on the district court.
My chambers was orally advised by the Fifth Circuit clerk’s office that argument in Anderson was held on November 6, 1979. The opinion was filed on January 7, 1980. Thus, as it has in this case, it took the Court of Appeals about sixty days to prepare draft and file its own opinion.
I believe that the order entered in Anderson is as improvident and improper as the order entered here. I note that nothing appears in the Anderson opinion, or by the Anderson panel members, commenting on this aspect of the mandate. And so it is impossible to tell whether that mandate would have issued in its sixty day form had the considerations which I urge here been called to that court’s attention. I believe that had the panel there focused on the matters with which 1 express concern, that court may well have eschewed the 60 day time limit in its mandate.
By the same token, the unreported proceeding and order in Kohn v. American Metal Climax, Inc., 458 F.2d 255 (3d Cir.), cert. denied, 409 U.S. 874, 93 S.Ct. 120, 34 L.Ed.2d 126 (1972), to which the Opinion Sur Denial of Petition for Rehearing refers, gives no indication that the issues discussed in this dissent were ever considered or urged in connection with that order. Moreover, it is impossible to judge the context in which that unreported and thus non-precedential order, which was collateral to the reported proceedings in Kohn, was entered, or indeed, whether time restrictions were even at issue. Thus, that order, independent of any reasoned and published opinion, can scarcely constitute authority for this court to impose deadlines on district court judges.
. The Judicial Council Reform and Judicial Conduct and Disability Act of 1980, Pub.L.No. 96 458 which reflects, in its provisions the furthest extent to which Congress has gone in evidencing concern with judicial conduct, does not bear upon the instant situation.
. Kennecott Corp. v. Smith, 637 F.2d 181 (3d Cir. 1980).