UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
decided: November 1, 1974.
ANNETTE GLOVER, ON BEHALF OF HERSELF AND HER MINOR CHILD, CHALYCE, SHIRLEY HOOK, ON BEHALF OF HERSELF AND HER MINOR CHILD, PAUL, AND ALL OTHERS SIMILARLY SITUATED, EAST HARLEM BLOCK NURSERY, INC., WEST 80TH STREET COMMUNITY CHILD DAY CARE CENTER, INC., DAY CARE ACTION COALITION OF CHILDREN'S MANSION, INC., FRANKLIN PLAZA DAY CARE CENTER, INC., AND ALL OTHER DAY CARE CENTERS SIMILARLY SITUATED, PLAINTIFFS-APPELLEES,
GEORGIA L. MCMURRAY, INDIVIDUALLY AND AS COMMISSIONER OF THE AGENCY FOR CHILD DEVELOPMENT OF THE CITY OF NEW YORK, JULE M. SUGARMAN, INDIVIDUALLY AND AS ADMINISTRATOR OF THE HUMAN RESOURCES ADMINISTRATION OF THE CITY OF NEW YORK, ABE LAVINE, INDIVIDUALLY AND AS COMMISSIONER OF THE DEPARTMENT OF SOCIAL SERVICES OF THE STATE OF NEW YORK, DEFENDANTS-APPELLANTS
On remand from Supreme Court, U.S. (1974), for reconsideration of our previous decision, 487 F.2d 403 (1973), in light of Hagans v. Lavine, 415 U.S. 528, 39 L. Ed. 2d 577, 94 S. Ct. 1372 (1974). Previous decision of this Court vacated; case remanded to District Court.
Lumbard, Hays and Timbers, Circuit Judges.
Author: Per Curiam
The Supreme Court, in a per curiam order*fn1 entered June 17, 1974, 417 U.S. 963, remanded the above case to us for further consideration in light of the Supreme Court's decision of March 25, 1974 in Hagans v. Lavine, 415 U.S. 528, 39 L. Ed. 2d 577, 94 S. Ct. 1372 (1974).
The issue to which our earlier opinion of November 7, 1973 was addressed was the correctness of a judgment which had been entered in the Southern District of New York, Kevin T. Duffy, District Judge, on May 24, 1973, 361 F. Supp. 235, ordering defendants to restore day care services to plaintiffs (including reimbursement for any day care services rendered during the pendency of this action) and enjoining defendants from denying day care services to any applicant because of failure to submit a certain form until that form was revised in accordance with the district court's opinion.
On appeal, one judge dissenting, we reversed and remanded the case to the district court with instructions to dismiss for want of jurisdiction. 487 F.2d 403. Our essential holding was that plaintiffs' due process claim did not present a substantial constitutional question and that accordingly there was no pendent jurisdiction over the statutory claims.
Pursuant to the Supreme Court's remand order of June 17, 1974, we entered an order on July 17, 1974 vacating our judgment of November 7, 1973. Thereafter we restored the case to the calendar, directed the parties to serve and file supplemental briefs and heard further oral argument on October 10, 1974.
The asserted jurisdictional underpinning for the instant action is the Civil Rights Act, 42 U.S.C. § 1983 (1970), and its jurisdictional implementation, 28 U.S.C. § 1343(3) (1970). Pendent jurisdiction over the statutory claims turns upon the existence of such jurisdictional underpinning.
The test for determining whether a substantial constitutional claim has been presented for § 1343(3) jurisdictional purposes was restated by the Supreme Court in Hagans v. Lavine, supra. The Court's refusal to reexamine the substantiality doctrine in Hagans, and particularly its emphasis upon the concept of "constitutional insubstantiality" as reviewed in Goosby v. Osser, 409 U.S. 512, 518, 35 L. Ed. 2d 36, 93 S. Ct. 854 (1973),*fn2 leads us to the inescapable conclusion that the district court in the instant case did have jurisdiction over the due process claim asserted by plaintiffs and pendent jurisdiction to consider the statutory claims urged by them.
We therefore remand the case to the district court for all purposes. We order that the mandate issue forthwith.*fn3