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October 21, 1975

Donald M. KINSELLA, Plaintiff,
BOARD OF EDUCATION OF CENTRAL SCHOOL DISTRICT NO. 7 OF the TOWNS OF AMHERST AND TONAWANDA, ERIE COUNTY and Ewald B. Nyquist, Commissioner of Education of the State of New York, Defendants

The opinion of the court was delivered by: CURTIN

CURTIN, Chief Judge.

 Plaintiff Donald M. Kinsella, a tenured school teacher employed by defendant school district, originally brought suit to declare § 3020-a of the New York Education Law unconstitutional. That section outlines the procedures to be followed in a dismissal hearing. In a decision dated February 19, 1974, a three-judge district court held § 3020-a unconstitutional because it did not require the decision of the Board of Education to be based exclusively on evidence produced before the hearing panel, and because the Board did not have to state the factual basis and the reasoning on which it based its decision. Kinsella v. Board of Education, 378 F. Supp. 54 (W.D.N.Y.1974). The court granted plaintiff his request for an injunction, stating that "defendants are enjoined from its [3020-a] enforcement until such time as appropriate administrative or legislative action is taken to remedy the defects in the procedures here involved." 378 F. Supp. at 60.

 Neither side appealed the decision. On February 28, 1974, the New York State Board of Regents approved amended regulations, proposed by the Commissioner of Education, that conformed § 3020-a to the three-judge court's decision. 8 N.Y.C.R.R. 82.10(h), 82.11 (as amended, February 28, 1974).

 Thereafter, the tenure hearing which had been enjoined by the court's order was resumed, with the plaintiff participating. The hearing panel reported its recommendations to the Board of Education; the transcript of the hearing was forwarded to the Board; and the Board then rendered its decision dismissing plaintiff on July 25, 1974.

 On November 22, 1974 plaintiff brought these motions for supplementary relief. In motion I, plaintiff claims that the injunction against implementation of § 3020-a is still in force because the new regulations of the Board of Regents were not legally approved under New York statutes. He asks that those amended regulations and the hearing held under them be declared void. Plaintiff does not challenge the content of the amended regulations in motion I, only the procedures by which they were enacted. In motion II, plaintiff argues that Arnett v. Kennedy, 416 U.S. 134, [94 S. Ct. 1633, 40 L. Ed. 2d 15] (1974), requires further protections to be accorded the plaintiff, and that the tenure hearing procedures and the tenure hearing itself lacked due process.

 Plaintiff originally brought this action under 42 U.S.C. § 1983, with jurisdiction under 28 U.S.C. § 1343(3), (4). A three-judge district court was convened pursuant to 28 U.S.C. § 2281. *fn1"

 Plaintiff argues in motion I that this court should exercise its discretion and decide the state law issue under the pendent jurisdiction doctrine. The parameters of the court's discretion under the pendent jurisdiction doctrine are far from precise. But, for reasons stated below, this court declines to review the legality of the amended regulations. *fn2"

 Numerous factors influence a court in considering a pendent jurisdiction question. There must exist a federal claim of sufficient weight to give the court jurisdiction and both the state and federal claims must be based on essentially the same facts. The claims must be so related that they present the court with one constitutional "case." United Mine Workers v. Gibbs, 383 U.S. 715, 725, [86 S. Ct. 1130, 16 L. Ed. 2d 218] (1966). Other factors to consider are judicial economy and convenience and fairness to litigants. But, even if these factors are present, the decision is still discretionary with the court. Gibbs, 383 U.S. at 726, 86 S. Ct. 1130.

 In this case plaintiff's claim in motion I is not truly pendent to a constitutional claim. The question presented by it, though related to plaintiff's original action, is a by-product of that case. In the original action, plaintiff argued that § 3020-a was unconstitutional because of intrinsic due process shortcomings in the provided procedures. And in motion II, plaintiff argues that there are still constitutional defects in the procedures themselves. But the state law issue presents a separate question -- whether the dismissal procedures were properly amended under state law. This does not present this court with one constitutional "case." See Gibbs, supra.

 In footnote 4 to the three-judge court decision, notice was taken of the then pending Supreme Court ruling in Arnett v. Kennedy. In that case the discharge procedures for federal competitive service employees under the Lloyd-La Follette Act, 5 U.S.C. § 7501, were being challenged. The Kinsella court said that "since the provisions of § 3020-a resemble, in some respects, those of 5 U.S.C. § 7501, our decision here will have to be applied with deference to the Court's decision when handed down." 378 F. Supp. 54, 59 n. 4. (W.D.N.Y. 1974). The Supreme Court decided Arnett on April 16, 1974.

 This court initially looks at plaintiff's request for a re-convening of a three-judge court. A prerequisite to a three-judge court is a substantial federal question. Ex parte Poresky, 290 U.S. 30, 31, [54 S. Ct. 3, 78 L. Ed. 152] (1933). The judgment on the substantiality of the federal claim is within the province of the single judge district court. 290 U.S. at 32, 54 S. Ct. 3.

 The Supreme Court recently discussed the question of "constitutional insubstantiality":

"Constitutional insubstantiality" for this purpose has been equated with such concepts as "essentially fictitious," Bailey v. Patterson, 369 U.S. [31], at 33 [82 S. Ct. 549, at 551, 7 L. Ed. 2d 512] "wholly insubstantial," ibid. ; "obviously frivolous," Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 288 [30 S. Ct. 326, 327, 54 L. Ed. 482] (1910); and "obviously without merit," Ex parte Poresky, 290 U.S. 30, 32 [54 S. Ct. 3, 4-5, 78 L. Ed. 152] (1933). The limiting words "wholly" and "obviously" have cogent legal significance. In the context of the effect of prior decisions upon the substantiality of constitutional claims, those words import that claims are constitutionally insubstantial only if the prior decisions ...

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