This is a class action on behalf of inmates of the Florida prison system alleging constitutional violations because of inadequate medical care. Defendants1 appeal an Order and Preliminary Injunction entered on May 22, 1975, requiring them to lower the inmate population to "emergency capacity"2 within one year of the date of the Order and to "normal capacity"3 by December 1, 1976. The effect of that Order was stayed pending appeal.4 A panel of this Court affirmed the Preliminary Injunction with some modification of the dates for compliance.5 Defendant's petition for rehearing en banc was granted, principally for the purpose of considering whether the district court's Order was appropriate as a single-judge injunction without the convention of a three-judge court.6

After benefit of oral argument and additional briefing, the en banc court now decides that the Order entered by the district court requires a result that the only two defendants in this lawsuit7 cannot possibly achieve through their own actions and still comply with the Florida law which limits their authority. The Court therefore vacates the Order and remands the case to the district court to decide precisely what the defendants in this suit can legally do to alleviate the constitutional violations found to exist in the Florida prison system, and then to fashion an Order with which these defendants can comply without violating any Florida laws. If a court order is to be entered which requires action of these defendants which will violate Florida laws on the ground that compliance with the law would be unconstitutional, then a three-judge court should be convened.

The en banc court adopts the panel opinion as to all issues raised on the appeal except in regard to the necessity of a three-judge court for the injunctive remedy entered by the trial court. The Court therefore affirms the district court's refusal to abstain, and the district court's findings of constitutional deprivations in the Florida prison system to the extent that they would support the granting of appropriate single-judge relief. We expressly do not consider the sufficiency of the evidence to support the Order appealed because that Order could only be entered by a three-judge court, which would have to first consider the evidence and make its own findings of fact and conclusions of law8 reviewable not by us, but by the United States Supreme Court.9 Nor do we consider what single-judge relief would be appropriate to remedy the constitutional deprivations found to exist in the Florida prison system which can be remedied by the lawful action of the defendants, a matter for initial consideration by the district court.

This case did not start out as a three-judge case. As initially instituted and throughout a considerable amount of litigation in the trial court the suit sought the delivery of adequate medical care for the inmates of the Florida prison system. Defendant Wainwright and the then defendant W. D. Rodgers, Director of the Division of Mental Health, were responsible for the medical care of the prisoner plaintiffs. Although the medical care was found to be so inadequate as to rise to an Eighth Amendment violation, no Florida law came under constitutional attack. At some point, however, the suit began to focus on prison overcrowding. The district court decided that adequate health care could simply not be afforded to the prisoners because of the crowded conditions of the prison. When the action turned into a prison overcrowding case, the relief stretched beyond the legal limits of the defendants' authority.10 The Mental Health Director has no power to control prison population. Defendant Wainwright had the power to control prison population by refusing to accept prisoners or letting them go, but he could do neither of these things without violating the Florida law which circumscribed his legal authority. The Director of the Division of Corrections in Florida is required, with the compelling force of criminal sanction, to accept all prisoners lawfully committed to his care. See Fla.Stat. §§ 839.21, 944.16, 945.09.11 He can discharge prisoners only in compliance with statutory restrictions. See Fla.Stat. § 944.29. Although the Director has the ability to provide some additional prisoner capacity, that ability is limited and was in no way shown to be sufficient to comply with the demands of the court's Order. The argument that discretionary discharges and facility control within the Director's legal power are sufficient to permit compliance with the Order without Florida law violation must fail because the district court's Order is written in absolute terms without limiting reference to the legal power of these defendants.12

In an effort to support the court's Order, the argument is made that "if in spite of best efforts Mr. Wainwright proves to be unable to comply with the Order consistently with his statutory authority, such 'impossibility' may be a valid defense under the circumstances of this case." This result-oriented argument misconceives the carefulness with which courts should grant the extraordinary remedy of mandatory injunctive relief,13 and misapprehends the "impossibility of performance" defense to court ordered injunctive relief.14 Likewise, the Order cannot be supported on the surmise that other state agencies or officials will rescue Wainwright from the dilemma of either violating the court Order and defending against contempt on the ground that compliance would require violation of Florida laws, or violating Florida law and being left to the defense that compliance would require violation of a Federal court order.15 The record in this case tends to demonstrate that defendant Wainwright, a well-respected prison official, has done perhaps all that he can do within his legal power to alleviate the overcrowding situation,16 even if the State of Florida has not done all that it can.

By accepting lawfully committed prisoners, Wainwright would only be subjecting them to an environment of constitutional deprivation. To refuse to accept further prisoners would contravene statutory law. Under these circumstances the district court Order condemns the operation of Wainwright's statutory responsibility. Here arises the three-judge court problem. If the Order is to remain as written, it is beyond the jurisdiction of a single judge. A three-judge court would be required. A statute does not have to be directly challenged as unconstitutional on its face where the impact of a court order achieves the precise result requiring a three-judge court. See Query v. United States, 316 U.S. 486, 489, 62 S. Ct. 1122, 86 L. Ed. 1616 (1942); C. Wright, Law of Federal Courts § 50, at 190 (2d ed. 1970). This Court recognized this in Newman v. Alabama, 503 F.2d 1320 (5th Cir. 1974), cert. denied, 421 U.S. 948, 95 S. Ct. 1680, 44 L. Ed. 2d 102 (1975):

Thus, the import of our disposition of the claims presented by Baker is that the complaint's failure to explicitly challenge the constitutionality of a specific regulation will not vitiate the need to convene a three judge court, where the relief sought, if granted, would inexorably condemn those promulgated rules and regulations not specifically challenged. Adoption of the contrary view would have been tantamount to sanctioning the resort to semantical and legal artifices, a practice which should be steadfastly abjured.

Id. at 1326-1327 commenting on Baker v. Estelle, 491 F.2d 417 (5th Cir. 1973). The statewide effect required for three-judge court jurisdiction is present because the district court's Order affects the entire Florida prison system. See, e. g., Phillips v. United States, 312 U.S. 246, 251, 61 S. Ct. 480, 85 L. Ed. 800 (1941); Sands v. Wainwright, 491 F.2d 417, 421-422 (5th Cir. 1973), cert. denied sub nom., Guajardo v. Estelle, 416 U.S. 992, 94 S. Ct. 2403, 40 L. Ed. 2d 771 (1974). See also the recent decision in Morales v. Turman, 535 F.2d 864 (5th Cir. 1976).

The result reached under the district court's Order as it is now framed creates the kind of event § 2281,17 the three-judge court statute, was designed to protect against. "(T)he central concern of Congress in 1910 (when enacting the three-judge court statute) was to prevent one federal judge from granting an interlocutory injunction against state legislation on grounds of federal unconstitutionality." Florida Line and Avocado Growers, Inc. v. Jacobsen, 362 U.S. 73, 80, 80 S. Ct. 568, 573, 4 L. Ed. 2d 568 (1960). See generally D. Currie, The Three-Judge District Court in Constitutional Litigation, 32 U.Chi.L.Rev. 1, 3-12 (1964). The Order in this case presents that type of situation for its impact goes to defendants' inability to maintain the Florida prison system constitutionally under the legislation within which they must operate.

Defendants cannot be required to suffer the consequences of an Order with which they have no legal capacity to comply, absent an injunction by a three-judge court against the operation of the offending statutes. The case is remanded to permit the district court to grant only such relief against these defendants as they can provide without nullification of state statutes, and to request the convention of a three-judge court if that is deemed appropriate under the circumstances.

VACATED AND REMANDED.

TUTTLE, Circuit Judge, with whom JOHN R. BROWN, Chief Judge, and GOLDBERG, Circuit Judge, join, dissenting.

With deference I dissent. I cannot agree to what I consider to be a tragically wrong disposition of the claim of nearly 15,000 Florida state prisoners to be afforded simple, humane treatment. After four and a half years of litigation, one year of which has been consumed in this Court, the Court now concludes that all was a nullity because the order entered by the trial court required a reduction of overcrowded prison facilities to meet constitutional standards on a schedule that might at some future date require the defendant Wainwright to violate state statutes or disobey the court's order. So fruitless and wasteful a result as this comes in spite of the fact that as fully demonstrated in the court's original opinion, Costello v. Wainwright, 525 F.2d 1239, every essential fact on which the trial court based its order was conceded by the appellant.

As pointed out in the earlier opinion, there was nothing in the trial record that would support the thesis that the trial court's order "would inexorably condemn" any Florida statute, the standard established in our case of Newman v. State of Alabama, (5th Cir. 1974) 503 F.2d 1320, to enable the court to determine whether a three-judge court is required.

Even were this not the case, the appellant, in a document entitled "Supplement to Record" filed at the time of the oral argument before the en banc Court, demonstrates that the likelihood of Wainwright's ability to carry out the Court's order without violating any state laws is greatly enhanced. This document, which, regardless of whatever other significance it may have, is at least binding on the appellant, recites that:

"Facilities presently available to appellants are staffed and otherwise accommodated for housing up to 17,091 persons. Currently there are 16,267 inmates housed in said facilities. Although the figure of 17,091 is indicated as maximum (emergency) capacity, appellants are able to expand the capacity of presently available facilities if necessary by adding temporary staff and other necessary physical plant facilities on a relatively short notice." (Emphasis added.)

The trial court's order requiring that inmate population be reduced in certain specified stages would not have required a reduction at the time of the filing of that document below the figure which it demonstrated Wainwright already had at his disposal.

The court's opinion, no matter how phrased, seems to me to be based on the proposition that unless it is absolutely clear at the time the court's order was issued that under no circumstances could it be complied with within the statutory limitations solely by action of the defendants themselves, the case called for a three-judge court. This is not the test. The test, as stated above, is that announced in Newman. An order of a trial court enjoining state action in a suit in which no state statute or rule or regulation is attacked as being unconstitutional would nevertheless require convening of a three-judge court "where the relief sought, if granted, would inexorably condemn those promulgated rules and regulations not specifically challenged. . . ." (Emphasis added.) 503 F.2d at 1326.

Of course, the Court, sitting en banc, can overrule Newman, but to do so it would have to reject the further view expressed in Newman:

". . . to countenance the application of Sands (Sands v. Wainwright) to the instant case would work an unprecedented expansion of the jurisdiction of three-judge courts and would erode the customarily constrictive view of three-judge court jurisdiction which the Supreme Court had mandated. (Citations omitted.)"

Moreover, for any court to expand the jurisdiction of three-judge courts at this particular moment, especially in the situation where clear and manifest injustice is being done to parties seeking vindication of constitutional rights seems to me to be singularly inappropriate. Congress passed and the President signed on August 12, 1976, Public Law 94-381 which abolishes requirement of three-judge courts in situations now covered by §§ 2281 and 2282 of Title 28 U.S.C. To be sure, there is a savings clause in the Act so that it is not applicable to pending suits. However, with such a clear indication of Congressional purpose to abolish three-judge courts in this type of litigation completely, I cannot but dissent from a judgment by this Court which expands the range of cases which must still consume the time of three judges.

I, therefore, would reaffirm the judgment and decision of the panel of this Court affirming the judgment of the trial court. I, of course, concur in those parts of the opinion which deals with the non-operative part of the trial court's order.