concurring in part and dissenting in part:
I concur in part A of the Discussion section of the majority opinion, but I dissent from part B because it is unnecessary and unfair to order reassignment of this case to another judge on remand.
DISCUSSION
A. The Appearance of Justice Dictates that Judge Price Try this Case
I am in complete agreement with my colleagues when they express their confidence that Judge Price would put out of his mind his previously expressed views in light of part A of the majority opinion if we were to remand this case to him. I must part company from my colleagues when they state that they must order reassignment to preserve the appearance of justice. If we are all sure that Judge Price could try the case fairly and impartially, the appearance of justice is best preserved by allowing Judge Price to try the case. This would demonstrate that district judges can and do conform their actions to appellate decisions.
B. The Circuit’s Method of Reassignment is Unjust
Even if I did agree with the majority that the appearance of justice required that Judge Price not hear this case, I would still point out that the way Ninth Circuit panels order cases reassigned is unfair. Reassignment of this ease in the manner the majority employs is punitive. Even though all three judges on the panel express the belief that upon remand Judge Price is capable of trying this case objectively, the majority nevertheless adopts a contradictory ruling that the appearance of justice warrants reassignment of the case. This conclusion will be disseminated publicly in the Federal Reporter and will have the same effect as “censuring or reprimanding [the] judge ... by means of public announcement.” 28 U.S.C. § 372(c)(6)(B)(vi), one of the sanctions Congress established for the discipline of judges by enacting the Judicial Councils Reform and Judicial conduct and Disability Act of 1980, Pub.L. No. 96-458, 94 Stat. 2035 (1980) [hereinafter “the Act”].
Compare the majority’s exercise of the court’s “inherent authority” in this case with proceedings under the Act.1 Whenever a Ninth Circuit panel exercises its “inherent authority” and publicly censures a district judge by ordering reassignment, the district judge is given no notice of the charges against him, nor is he given any opportunity to explain his actions. The district judge has no part in preparing the designated record that provides the basis for appellate review. In fact, there is no issue on appeal concerning the conduct of the judge. The charges appear in the briefs of the litigants. Consequently, the record as to the charges against the judge is compiled solely by the disgruntled litigants who have no concern for the interests of the judge or the appearance of justice.2 Moreover, when the opinion on the merits of the underlying case must be published, the order of reassignment must also be published. In short, the district *658judge is disciplined without having been accorded any procedural protection.
In marked contrast, the procedures Congress set forth under the Act are replete with procedural safeguards, and the process itself remains confidential unless the Judicial Council of the Ninth Circuit determines at the conclusion of the proceedings that some form of public discipline is necessary. Under the Act, when a complaint about a judge is filed, the chief judge of the circuit and the judge whose conduct is the subject of a complaint receive copies. Rule 3(a) of the Rules of the Judicial Council of the Ninth Circuit Governing Complaints of Judicial Misconduct or Disability [hereinafter “Rules”].
The complaint is first reviewed by the chief judge. The chief judge may dismiss the complaint if it is frivolous or if it does not fall within the scope of the Act, or he may conclude the proceedings if corrective action has already been taken. 28 U.S.C. § 372(c)(3). At this stage, Rule 4(b) provides that the chief judge may request the judge whose conduct is the subject of a complaint to file a written response to the complaint, or the chief judge may communicate orally with the judge in question and thereby correct any bona fide problem the complaint raises.
If the chief judge does not summarily dispose of the complaint through his initial review, he appoints himself and equal numbers of circuit and district judges of the circuit to a special committee to investigate the facts and allegations of the complaint. 28 U.S.C. § 372(c)(4). Rule 4(e) provides further protection to the judge by providing that a special committee will ordinarily not be appointed until the judge who is the subject of the complaint has been invited to respond and has been given reasonable time to do so. Then the committee conducts an investigation and prepares a report with its findings and recommendations that it submits to the judicial council. The judicial council conducts any additional investigation it considers necessary, and takes such action as is appropriate. 28 U.S.C. § 372(c)(6). An option available to the Council short of public censure or reprimand is to censure or reprimand the judge privately. 28 U.S.C. § 372(c)(6)(v). If an analogous procedure governed the instant case, and if Judge Price chose not to transfer the case voluntarily after consultation with the chief judge of the circuit during the initial phase of the process, the Council could order him to do so at the conclusion of the proceeding.
In cases such as the one before us where we have no doubt that the judge who is the subject of the complaint could try the case fairly on remand and where a question exists as to whether transferring the case to preserve the appearance of justice is advisable, it would seem appropriate that the circuit panel refer the case confidentially to the chief judge or the circuit council. Moreover, treatment of district judges in the situation before us through the chief judge and the judicial council would promote comity between the court of appeals and the district courts. After the initial review by the chief judge of the circuit, any decision of a special committee or the council would be a decision by both circuit and district judges, rather than by decision by only two of the thirty-five circuit judges. It is ironic that a district judge can be publicly disciplined in the complete absence of due process as a result of a panel of this court invoking its “inherent authority.”
The Ninth Circuit could adopt its own rule providing for reference of this type of complaint to the chief judge for processing in the manner already provided for complaints about judges. The judicial council already has the authority to “make all necessary and appropriate orders for the effective and expeditious administration of justice within the circuit.” 28 U.S.C. § 332(d)(1). Moreover, all judicial officers are required to promptly carry into effect all orders of the judicial council. 28 U.S.C. § 332(d)(2). The council has sufficient authority and adequate tools for an inquiry within the ambit of due process, whereas a panel of the circuit does not. The judicial council is authorized “to hold hearings, to take sworn testimony, and to issue subpoenas and subpoenas duces tecum.” 28 U.S. C. § 332(d)(1). An appellate panel has no authority to make findings of fact.
*659Unless either the Ninth Circuit or Congress acts to change the procedure by which eases such as this one are reassigned to preserve the appearance of justice, district judges will continue to be subject to unjust public discipline as the result of a decision by only two of the thirty-five circuit judges. The resulting unintended strain on the relationship between the court of appeals and the district court should be eliminated.
. The Act is intended to “operate in the large to effect the same results that follow from the exercise of an appellate court’s supervisory powers in particular cases.” Report “Constitutional Issues Raised by the Proposed Judicial Conduct and Disability Act of 1979,” 125 Cong.Rec. 30045, 30049 (1979).
. While the record in the instant cases is complete enough for us to decide that Judge Price is capable of impartially trying the case on remand, it cannot be considered complete for the purpose of meting our discipline.