(dissenting) .
I respectfully dissent. In my opinion the district court abused its discretion and violated the principle of separation of powers when it issued the protective order forbidding the FAA to take administrative disciplinary action against certain of its employees.
Discharge, suspension, and other matters relating to their personnel are functions entrusted to federal administrative agencies. Judicial review of actions pertaining thereto is limited to consideration of whether the applicable procedures were followed and whether the action taken was arbitrary or capricious. See 5 U.S.C. § 7501; McGhee v. Johnson, 10 Cir., 420 F.2d 445, 447; Bishop v. McKee, 10 Cir., 400 F.2d 87, 88; Meehan v. Macy, 129 U.S.App.D.C. 217, 392 F.2d 822, 830; and Mancilla v. United States, 9 Cir., 382 F.2d 269, 270, cert denied 390 U.S. 982, 88 S.Ct. 1104, 19 L.Ed.2d 1280.
No precedent of which I am aware authorizes the federal judiciary to enjoin disciplinary action by the federal executive branch or one of its agencies. The object of separation of powers “is basic and vital,” O’Donoghue v. United States, 289 U.S. 516, 530, 53 S.Ct. 740, 77 L.Ed. 1356, and “deeply rooted in the constitutional divisions of authority in our system of Government,” Perkins v. Lukens Steel Co., 310 U.S. 113, 132, 60 S.Ct. 869, 879, 84 L.Ed. 1108. See also Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 and especially concurring opinion of Justice Frankfurter, 593-595, 72 S.Ct. 863, 96 L.Ed. 1153. Judicial interference with ordinary executive duties will produce nothing but mischief. Decatur v. Paulding, 14 Pet. 497, 516, 39 U.S. 497, 516, 10 L.Ed. 559.
The majority hold that the protective order effected a permissible restoration and maintenance of the status quo and was issued in aid of the district court’s jurisdiction as authorized by 28 U.S.C. § 1651. These reasons, considered either separately or collectively, do not warrant the judicial encroachment on executive powers which results from the protective order.
I find nothing in the decision in Brotherhood of Locomotive Engineers v. Missouri-Kansas-Texas Railroad Co., 363 U.S. 528, 80 S.Ct. 1326, 4 L.Ed.2d 1379, that is either controlling or persuasive. First, neither that case, nor *1026any upon which it relies, related to a federal court injunction against the exercise of federal executive discretion. The issue of separation of powers was simply not present. Second, the rationale of Locomotive Engineers reveals its inapplicability to the present case. The Court there said, “the power to condition [injunctive] relief is essential to ensure that extraordinary equitable remedies will not become the engines of injustice * * 363 U.S. at 532, 80 S.Ct. at 1329. Accordingly, the Court held that restoration or maintenance of the status quo is a proper tool where the granting of equitable relief at the behest of one party would occasion grave injustice to the other. We have no such situation. The pertinent aspects of the status quo are (1) the defendants were employees of FAA, and (2) FAA had the power to discipline its employees. An injunction against collective actions of the defendants does not of itself subject any of them to any disciplinary action. The power of the FAA to discipline its employees in no way depends on the equitable relief which it requested from the court. In short, there is no relationship, as there was in Locomotive Engineers, between the equitable relief requested and the situation to which the protective order is directed.
The majority justify the order as one issued in aid of the district court’s jurisdiction. In ordinary circumstances, federal courts have both inherent and statutory power to issue orders to ensure that their lawful orders are carried out and obeyed. 28 U.S.C. § 1651. See Faubus v. United States, 8 Cir., 254 F.2d 797, cert. denied 358 U.S. 829, 79 S.Ct. 49, 3 L.Ed.2d 68, and Mississippi Valley Barge Line Co. v. United States, E.D.Mo., 273 F.Supp. 1, affirmed Osbourne v. Mississippi Valley Barge Line Co., 389 U.S. 579, 88 S.Ct. 692, 19 L.Ed.2d 779. See also Federal Trade Commission v. Dean Foods Co., 384 U.S. 597, 86 S.Ct. 1738, 16 L.Ed.2d 802. Determination of the need for the order under review to protect the court’s jurisdiction requires consideration of the preliminary injunctions which the order seeks to protect.
The preliminary injunctions enjoined the defendants from “continuing, encouraging, ordering, aiding, engaging or taking any part in” any work stoppage, from interfering with the movement of air traffic, and from taking any action which would interfere with the court’s jurisdiction. These mandates were obeyed when the various defendants returned to work. The disciplinary procedure contemplated by FAA will not bring the affected defendants into a state of noncompliance with the preliminary injunctions. Terminated or suspended employees will not be engaging in a collective work stoppage. Their failure to work will result from FAA, not their own, action. In my opinion protection of certain employees against discipline is not needed to ensure compliance with the preliminary injunctions.
Even if the effect of the preliminary injunctions was to get the men “back to work,” the FAA disciplinary actions will not adversely affect the integrity of the injunctions. Their purpose was to halt the work stoppage which impeded air traffic. That purpose was achieved and air traffic has returned to normal. The proposed action of FAA will not undermine the accomplishment of that purpose. Nothing is shown to indicate that it will create another air transportation crisis. The FAA plans to exact sanctions, where appropriate, which will not hamper the operations of the air traffic control facilities. The proposed disciplinary action will not impair the effect of the preliminary injunctions or any other action which the district court may take on the issues of whether the work stoppage was an illegal strike which should be permanently enjoined.
The termination or suspension of various defendants will not affect the court's jurisdiction over either them, their co-defendants, or the subject matter. The theory of the defendants seems to be that judicial determination of participation in the work stoppage must precede administrative disciplinary action. *1027In view of the executive discretion in personnel matters, I am not persuaded. I agree with the government that the 100 or more individual situations should be initially filtered through the administrative process with court review of arbitrary or capricious action.
My associates say that the FAA disciplinary action “has the effect of placing the cart before the horse” and circumvents the orderly process which the FAA chose to determine the real issues. This position assumes that the imposition of discipline and the lawsuits involve identical issues and that, therefore, the former must await decision of the latter. I do not agree. The issue in the lawsuits is whether there was an illegal strike. The resolution of this issue will not foreclose the right of FAA to impose disciplinary sanctions subject to limited court review. A judicial decision that the work stoppage was not an illegal strike will have no effect on the power or right of FAA to impose such sanctions as it may deem necessary in the interests of public safety and employee morale, i. e., the “efficiency of the service.” See 5 U. S.C. § 7501 and Bishop v. McKee, 10 Cir., 400 F.2d 87, 88. It is not a question of the cart before the horse because there are two different horses and two different carts.
The defendants have made no attempt to show that they are likely to prevail on the merits. Irreparable injury has not been established. There is no claim that the protective orders are needed to prevent substantial harm to other interested persons or to the public interest. These conditions should be met before a court enjoins administrative action. See Associated Securities Corporation v. Securities and Exchange Commission, 10 Cir., 283 F.2d 773, 774-775.
In support of its motion for a stay of the protective order, the FAA filed in this court the affidavit of the Chief, Air Traffic Branch, Denver area. The affidavit is not controverted. The affiant states:
“The agency [FAA] has determined that the best interests of the Government, the safety of the general public and the welfare of their fellow workers would best be served if 16 of the strikers are not returned to their regular air traffic control duties.”
I respectfully suggest the doctrine of separation of powers requires that the courts must recognize the powers, duties, responsibilities, and expertise of the FAA with regard to the protection of the public interest. The district court abused its discretion when it substituted its judgment for that of the FAA.