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Chance v. Board of Examiners

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT


decided: August 11, 1977.

BOSTON M. CHANCE, LOUIS C. MERCADO, ET AL., PLAINTIFFS-APPELLEES,
v.
THE BOARD OF EXAMINERS, DEFENDANT-APPELLANT, AND THE BOARD OF EDUCATION OF THE CITY OF NEW YORK AND THE CHANCELLOR OF THE CITY SCHOOL DISTRICT, DEFENDANTS-APPELLEES

561 F.2d 1079.

Gurfein and Meskill, Circuit Judges, and Newman, District Judge.*fn*

Author: Gurfein

GURFEIN, Circuit Judge:

Our attention has been called, by a motion to clarify our decision of August 11, 1977, to the fact that proceedings are still continuing under this court's mandate in Docket Nos. 75-7161 and 75-7164 regarding the problem of excessing supervisory personnel, see Chance v. Council of Supervisors, et al., 534 F.2d 993 (1976), of which we had not been informed. Since no action of the District Court involving the mandate issued in the Chance v. Council of Supervisors appeal was called to our attention, the excessing problem was not a matter covered. Our decision herein does not foreclose the District Court from taking such action as it sees fit with respect to this matter, including a determination of any questions of jurisdiction that may be raised by the Council of Supervisors, subject to a separate appeal when the District Court determines the issues posed.

So that the mandate to be issued in the appeal we have just decided may be carried out without inadvertently creating confusion respecting the excessing portion of the litigation, the District Court is directed to sever the excessing issue from the main litigation, assign a new civil number to the "case" concerning the excessing issue, and proceed to carry out the mandate to be issued in this appeal concerning 70 Civ. 4141 (MP).


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