concurring.
I join in the majority opinion, except for the small portion of Part I that relies on our prior adjudication in this case as if it were a binding precedent. I believe it is more accurate merely to state that a previous majority opinion of this court, 612 F.2d 84 (3d Cir. 1979) (in banc), supporting a judgment subsequently reversed by the Supreme Court, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981), rejected an attack on the district court’s appointment of a special master. See 612 F.2d at 111-12. In the face of the Supreme Court’s reversal, I am unwilling to accord any precedential vitality to that opinion.
Nevertheless, I join the majority because I am unwilling to assume a posture that would put this court out of touch with reality. It would serve no useful purpose to conduct an academic exercise that would further prolong these proceedings, in which counsel for all the litigants have shown more interest in seeking judicial endorsement of their idiosyncratic views of the law than in properly resolving a truly difficult dispute.
This is not an ordinary contempt proceeding. Rather, it is a vehicle chosen by the district judge to obtain Commonwealth financing for his employment of masters to implement his remedy. That financing has now been secured up to June 1982. To hold now that the appointment of the masters was invalid ab initio would serve no realistic function. The work has been performed, the funds have been expended, and there is simply no way to undo the work performed by the masters or to return the funds to the Commonwealth. Moreover, it would be counterproductive to readjust the status or classification of the Pennhurst residents who have been processed by the masters. It would have been preferable, however, for this court to have granted the motion for a stay so that the issue could have been resolved before the expenditure of massive funds in the form of civil contempt fines. I voted for a stay, but both the majority of this court and the Supreme Court ruled otherwise. It also would have been preferable to expedite these proceedings before a panel. I voted against an initial hearing in banc because of the scheduling and other delays inherent in our in banc procedure, but again a majority of this court voted otherwise.
Accordingly, because I am disenchanted with the establishment of the masters’ apparatus, I believe that we should remove these proceedings from the appellate level and return them to the district court as soon as possible. Appellants then may move for relief under Fed.R.Civ.P. 60(b), allowing the district court to act immediately to have its remedy implemented by state officers under state law.
It is for these very pragmatic reasons that I join the majority. I do this to give Secretary O’Bannon the earliest possible opportunity to make a presentation on the basis of changed circumstances. Moreover, I would have our mandate issue forthwith so that the proceedings in the district court would not be further delayed.
GARTH, Circuit Judge, concurring in part and dissenting in part, with whom JAMES HUNTER, III, Circuit Judge, joins.I agree with the majority that this court has jurisdiction over the contempt appeal at *64181-2381. I reach this conclusion by a different route from the majority, however, for I believe that Latrobe Steel Co. v. United Steelworkers, 545 F.2d 1336, 1340 (3d Cir. 1976), and United States v. Spectro Foods Corp., 544 F.2d 1175, 1179 (3d Cir. 1976), establish that this court has jurisdiction to decide the validity of the contempt order in conjunction with the appeals of the district court’s orders of March 17, 1978, and July 14,1981. As for the merits of the appeal in this case, I would hold that because the underlying orders appointing a Master at Pennsylvania’s expense were improper, the contempt order must fall as well.
I.
Considered by itself, the district court’s August 25, 1981, contempt order would not be appealable. It is not an “injunction” and thus there is no appellate jurisdiction under § 1292. Nor is it a “final order” appealable under § 1291. Under this court’s decision in Croker v. Boeing Co. (Vertol Div.), 662 F.2d 975 (3d Cir. 1981) (en banc), so long as attorney’s fees remain undetermined, an order is not “final” for our jurisdiction to attach. In this case, the district court’s order holding the Commonwealth defendants in contempt reserved decision on whether the plaintiffs should be awarded attorney’s fees incurred in conjunction with the contempt proceedings. In my view, Croker is controlling here, and undermines any argument that this court has jurisdiction under § 1291 to hear the appeal of the district court’s order of August 25, 1981.
Nevertheless, I believe that the contempt appeal is properly before this court under Latrobe Steel Co. v. United Steelworkers, 545 F.2d 1336 (3d Cir. 1976), United States v. Spectro Foods Corp., 544 F.2d 1175 (3d Cir. 1976), and many other similar cases. In those cases, a preliminary injunction had been issued, followed by an order holding one of the parties in contempt for violating the injunction. In such cases, where an appeal has been taken from the preliminary injunction, this court has repeatedly held that
although an adjudication of civil contempt is not ordinarily appealable [until a “final decision” has been rendered], it is well established that an appellate court may consider the matter of a civil contempt in connection with an appeal from the underlying preliminary injunction.
Latrobe, supra, 545 F.2d at 1340 (footnote omitted). Accord, Spectro Foods, supra, 544 F.2d at 1179. The logic of these decisions appears to rest on the principle that, because civil contempt is remedial, not punitive, in nature,
the reversal of the [preliminary injunction] decree ... does more than destroy the future sanction of the decree. It1 adjudges that it never should have passed; that the right which it affected to create was no right at all. To let the liability stand for past contumacy would be to give the plaintiff a remedy not for a right but for a wrong, which the law should not do.
Salvage Process Corp. v. Acme Tank Cleaning Process Corp., 86 F.2d 727, 727 (2d Cir. 1936). See also United States v. United Mine Workers, 330 U.S. 258, 295, 67 S.Ct. 677, 696-97, 91 L.Ed. 884 (1947); Bethlehem Mines Corp. v. United Mine Workers, 476 F.2d 860, 864-67 (3d Cir. 1973).1
This “well-established” doctrine provides an entirely sufficient basis for jurisdiction over the present contempt appeal.2 In this *642case the underlying injunctive orders — the court’s permanent injunction of March 17, 1978, and the related payment orders of July 14, 1981, issued pursuant to that injunction — have been timely appealed. Thus, to paraphrase Latrobe, although the district court’s contempt order of August 25,1981, would not ordinarily be appealable, it is clear that this court may consider that contempt order in connection with the appeal from the underlying injunctive orders of March 17, 1978, and July 14, 1981.3
II.
As I have indicated in my separate opinion in the appeals at Nos. 81-2448 and 81-2449, see 673 F.2d at 646-47, the district court’s orders of July 14, 1981, requiring payment to the Special Master and the Hearing Master, were improper. And as the underlying orders upon which the contempt was predicated cannot stand, neither can the adjudication of contempt itself be upheld. In accordance with the views that I have expressed in this opinion, and in my separate opinions in the merits appeals, see 673 F.2d at 662-71, and the payment orders, see 673 F.2d at 646-47, I would remand all the cases to the district court with two instructions. First and foremost, I would direct the district court to enter an order doing no more than enjoining the Commonwealth to comply with its own statutes, regulations and decisional laws affecting the care of the plaintiffs, thereby discontinuing the offices of the Special Master and the Hearing Master. Second, I would direct the district court to return to the Commonwealth any as-yet unspent moneys accumulated from the $10,000-a-day civil contempt fine, and, if requested by the Commonwealth, to resolve any questions concerning moneys already spent.4
Thus to the extent that the majority holds that appellate jurisdiction attaches to the contempt appeal at 81-2381 I am in agreement with that determination, even though the basis of my agreement is substantially different than the theory on which the majority proceeds. To the extent, however, that the majority has declined to discharge the contempt I must respectfully dissent for the reasons which I have specified.
. To be sure, this court, sitting en banc, could overrule the panel decisions in Latrobe and similar cases. I can think of no reason for doing so, however, and I note that as recently as February 1, 1982, this court sitting en banc went out of its way to note the continuing vitality of Latrobe and Spectro. See Kershner v. Mazurkiewicz, 670 F.2d 440, 449 n. 12 (3d Cir. Feb. 1, 1982) (en banc).
. Both the majority and Chief Judge Seitz are therefore incorrect in focusing their respective analyses solely on the question of the appealability of the contempt order under § 1291.
In my view, the majority’s attempt to distinguish Croker needlessly clouds the law of “finality” under § 1291, and raises the prospect of numerous arguments in the future that the “underlying policy” of Croker is inapposite in this or that particular set of circumstances. Even *642assuming for the sake of argument that it is desirable to begin carving exceptions into the rule so recently announced in Croker, I cannot understand the need to do so in this case, in which another, well-established basis for jurisdiction is presented.
Chief Judge Seitz, on the other hand, is correct in arguing, in his separate dissenting opinion in No. 81-2381, that this court has no jurisdiction over the contempt appeal under § 1291; but he apparently overlooks another fount of jurisdiction which does support an appeal from the contempt order. In the cases cited in Judge Seitz’s opinion, the contempt was not appealed in conjunction with an appeal of an injunctive order, as it was in Latrobe and Spectro Foods, and as it is here. Thus while relevant to appellate jurisdiction under § 1291, the cases cited by Judge Seitz have no relevance to, and indeed in no way bring into question, this court’s jurisdiction under § 1292 over the appeal at No. 81-2381.
. Because, as is evident from the above discussion, I conclude that this court has jurisdiction in No. 81-2381 under the Latrobe doctrine, I do not find it necessary to address any other aspects of appealability, such as the nature of the issues that may be raised on § 1291 appeals from post-judgment contempt orders. Cf. Maj. Op. in No. 81-2381, at 636-639.
. A reversal in Nos. 81-2448 and 81-2449 on the ground that Pennsylvania should not have been ordered to pay for the expenses of the Master would entitle the Commonwealth, on remand, to seek reimbursement for the moneys already deducted from the accumulated civil contempt fine and applied to the Master’s expenses. I recognize, however, that because Pennsylvania had a state-law duty to perform the same functions that the Master .was performing, it would have had to expend its own funds as it carried out its state-law duties. It would be for the district court in the first instance to determine whether in so doing the Commonwealth would have had to expend the same amount of money as it was required to pay in the payment orders, and if not, to make whatever adjustments as might be necessary.