concurring is part and dissenting in part:
I concur in my colleague’s well reasoned conclusion that the order of the U.S. Department of Transportation (“DOT” or “agency”) directing arbitration was invalid. I cannot agree, however, that we are at liberty under our controlling precedent, Carey v. O’Donnell, 506 F.2d 107 (D.C.Cir.1974), cert. denied, 419 U.S. 1110, 95 S.Ct. 783, 42 L.Ed.2d 806 (1975), to allow parties to continue federal district court litigation while simultaneously maintaining arbitration petitions. I would grant the Air Line Pilots Association (“ALPA”) the injunction it seeks to prevent such multifariousness.
In Carey v. O’Donnell, this court rejected a collateral attack “in the District Court or any other forum,” 506 F.2d at 110, on an integrated seniority list resulting from an airline merger. We found that Congress had created “a statutory scheme whereby matters of airline merger, including the fair and equitable integration of seniority lists, are vested in the Civil Aeronautics Board, subject only to review in the courts of appeals.” Id. (emphasis in original) We reached this decision as a matter of statutory interpretation, whatever the limits on relief available to an aggrieved employee in arbitration before DOT, see Majority opinion (“Maj. op.”) at 502 n. 6. Thus, although I doubt whether the limits on relief hypothesized by the majority in fact exist, this issue does not affect the vitality of Carey. See American Airlines, Inc. v. CAB, 445 F.2d 891, 896-97 (2d Cir.1971) (Friendly, C.J.) (suggesting that DOT arbitration can be made binding on union), cert. denied, 404 U.S. 1015, 92 S.Ct. 681, 30 L.Ed.2d 663 (1972); Transport Workers of America v. CAB, 725 F.2d 775, 779 (D.C.Cir.) (same), cert. denied, 469 U.S. 818, 105 S.Ct. 87, 83 L.Ed.2d 33 (1984); Hyland v. United Air Lines, Inc., 254 F.Supp. 367, 373 (N.D.Ill.1966) (stating that CAB “would fully hear the subject matter of [a] complaint” against union and carrier which requested make-whole relief, including damages). We said in Carey that when the jurisdiction of the agency is triggered with its concomitant arbitration procedure, no separate court proceeding can be pursued. Only by ignoring this precedent, squarely on point to the case sub judice, can the majority reach the result it does today. That DOT is apparently willing to abdicate its statutory responsibility as exclusive arbiter of fair representation claims, see Maj. op. at 499, cannot excuse the majority’s failure to vindicate the principle embodied in Carey. Our institutional role as judges requires us to uphold our prior decisions and to apply the statutory scheme ordained by Congress. It is as simple as that.
There can be no serious doubt that we have the power to enjoin a party from proceeding before a federal district court in another circuit. The All Writs Act, 28 U.S.C. § 1651(a), makes that authority clear. See Toledo Scale Co. v. Computing Scale Co., 261 U.S. 399, 426, 43 S.Ct. 458, 465, 67 L.Ed. 719 (1923); Environmental Defense Fund, Inc. v. EPA, 485 F.2d 780, 783 (D.C.Cir.1973) (per curiam).
I recognize that considerations of prudence and comity must shape our decision whether and how to exercise that power. I also realize that we are neither infallible nor final, and I respect the prerogative of our sister circuits to interpret the law differently from us. Indeed, I would hesitate to enjoin a litigant with no case potentially before us from proceeding in a circuit that had imposed no restrictions on cogenerat-ing litigation and arbitration simultaneously. But that is scarcely the situation here.
No court of appeals, in the Fifth Circuit or elsewhere, has ever ruled that a litigant may pursue the same fair representation claim simultaneously before a court and DOT. The Ninth Circuit did allow litigation to continue in Clayton v. Republic Airlines, Inc., 716 F.2d 729, 730 (9th Cir.1983), but there was no ongoing CAB proceeding: “[pjlaintiffs did not seek review *505of the arbitration award with the CAB.” The same situation existed in Augsburger v. Brotherhood of Locomotive Engineers, 510 F.2d 853, 856 (8th Cir.1975). By contrast, Carey confronted precisely this type of dual-track litigation strategy, see Northeast Master Executive Council v. CAB, 506 F.2d 97 (1974) (companion case affirming CAB order), cert. denied, 419 U.S. 1110, 95 S.Ct. 783, 42 L.Ed.2d 806 (1975). I do not believe that we should turn a blind eye to our own circuit precedent, which is the only authority squarely on point, on the basis of speculation, see Maj. op. at 500-01, that the Fifth Circuit may go where no circuit has gone before and allow litigation in federal court simultaneously with arbitration before the agency.
Indeed, a different district court in the Fifth Circuit held that it lacked jurisdiction to enjoin the seniority and job retention provisions of an airline collective bargaining agreement that were the subject of CAB orders then under appeal in this court, see Holman v. Southern Airways, Inc., 210 F.Supp. 407, 409-11 (N.D.Ga.1962). The court was “convinced that it [did] not have jurisdiction to grant the plaintiffs the relief they [sought],” and advised them that their “proper remedy” was to pursue their petition for review of the CAB’s order in this court, 210 F.Supp. at 410, 411. Holman was not even cited by the Houston district court in its opinion on jurisdictional issues, see Rogers v. Air Line Pilots Ass’n, 647 F.Supp. 195, 196-97 (S.D.Tex.1985). Fifth Circuit law does not provide the clear and unambiguous statement that I believe would be necessary in order for us, on prudential grounds, even to consider declining to follow our own circuit precedent.
It is immaterial that there is no certainty of conflict between the DOT arbitration and the judicial proceeding in Texas, or that the agency’s arbitration order might not be appealed to this circuit. The mere possibility of the invasion of this court’s jurisdiction to review DOT’s final order is sufficient ground on which to issue an injunction. In FTC v. Dean Foods Co., 384 U.S. 597, 86 S.Ct. 1738, 16 L.Ed.2d 802 (1966), the Supreme Court held that a regional court of appeals had the power to enjoin a proposed merger that was under review by the Federal Trade Commission. There was no guarantee that the merits of that case would ever reach a court of appeals: the proposed merger might have collapsed at the last minute, or the FTC might have reconsidered its complaint. The authority of an appellate court “is not confined to the issuance of writs in aid of a jurisdiction already acquired by appeal but extends to those cases which are within its appellate jurisdiction although no appeal has been perfected.” Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 25, 63 S.Ct. 938, 941, 87 L.Ed. 1185 (1943); see also McClellan v. Garland, 217 U.S. 268, 279-80, 30 S.Ct. 501, 503-04, 54 L.Ed. 762 (1910) (writ may issue “before the appellate court has actually obtained jurisdiction of the case” on the ground that the action “might have been taken on appeal to the Circuit Court of Appeals”) (emphasis added).
The possibility that a petition for review of DOT’s final order might be filed in some other circuit is no different from any of the other reasons why eventual review in this court is not a certainty, and it similarly does not affect our ability to issue an injunction. Otherwise, the fact that review might be sought in any circuit (except the Federal) would mean that “no court could do anything [and therefore] would lead to complete frustration.” Board of Governors of the Federal Reserve System v. Transamerica Corp., 184 F.2d 311, 316 (9th Cir.) (emphasis added), cert. denied, 340 U.S. 883, 71 S.Ct. 197, 95 L.Ed. 641 (1950). The powers of the federal courts are not so ephemeral.
Although the petitioning party in this case is the union, ALP A, it was the pilots, Baker and Rogers, who created the anomalous and difficult situation confronting us, by seeking relief both in the Southern District of Texas and before DOT. The pilots knew, or should have known, that this dual-track strategy created the risk that ALPA would petition for review of DOT’s order in this court (especially in view of our previous holding in Carey), and that the pilots would need to seek our aid in safeguarding the relief they obtained from DOT. If the *506pilots had not sought an order directing arbitration before DOT, no follow-on petition for review could come before us, cf. Maj. op. at 501 n. 5, and this would be a far more troublesome case.
A decision to enjoin a party from proceeding before a district court in another circuit cannot be made lightly, and I am not unmindful of my colleagues’ reluctance to exercise this court’s power under the All Writs Act. But any such reluctance is overwhelmed by our constant commitment to the binding law of this circuit. When the precedent in question is the only precedent in any circuit that is directly on point to the case sub judice, it becomes unseemly for our court to take any other course but to follow circuit law. I respectfully dissent.