(concurring):
I concur in the result.
While I agree with much of Judge Hays’ opinion our differences on some issues necessitate this separate statement.
I rest my concurrence on the ground that the district court abused its discretion in rendering judgment on the pendent claim.
The district court, in my view, did have pendent jurisdiction over the statutory claim in the sense of judicial power. The Supreme Court has held that power exists “in the federal courts” to decide a pendent claim when, (1) it is joined to a constitutional claim which is not insubstantial, and, (2) the nature of the pendent and constitutional claims are such that the plaintiff “would ordinarily be expected to try them all in one judicial proceeding.” United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966). Both of these tests are satisfied in this case.
The fact that the three-judge court declared the constitutional claüm moot and thereupon dissolved itself, referring the proceedings back to the single judge district court, did not deprive the district court of pendent jurisdiction. Pendent jurisdiction, in the sense of judicial power, attaches at the outset of a suit. See United Mine Workers v. Gibbs, 383 U.S. 715, 727, 86 S.Ct. 1130 (1966). The subsequent dismissal of the constitutional claim, Gibbs makes clear, does not deprive the federal courts of all power over a properly joined pendent claim. What it does do is to mandate a reassessment by the three-judge court, or by the single district judge upon referral by the court, of the propriety of proceeding further on the pendent claim. The question becomes one of discretion, and not of judicial power in the strict sense. See id. at 726-727, 86 S.Ct. 1130.
I know of no authority which prohibits a three-judge court, after it has disposed of a constitutional claim, from referring any remaining pendent claims to a single judge for appropriate disposition. A flat prohibition on such references does not recommend itself from the standpoint of judicial convenience and economy, for often a single judge will be able to dispose of the pendent claims more expeditiously than the cumbersome three-judge court machinery. Of course, the three-judge court might well have dismissed the pendent claim, but, for reasons which are not stated, it did not do so.
In any event, the propriety of the single judge’s decision concerning whether or not to proceed to judgment on a pendent claim is subject to review for abuse of discretion, and that is the issue I find squarely presented in this case.
There is force to Judge Hays’ suggestion that one factor relevant to the exercise of the district court’s discretion is the nature of the remedy sought by plaintiffs. Here the remedy was extreme: an injunction against the operation of a welfare program under a state statute. Congress established the three-judge court mechanism to insure that a state statute would not be enjoined on constitutional grounds simply on the decision of a single judge. While a three-judge court is not required when an injunction is sought on statutory grounds, as here, nonetheless the extreme nature of the injunctive remedy against the state weighs heavily against the adjudication of a pendent claim by a single district *181judge. This is particularly true in a case such as this, where the constitutional claim had been dismissed well before a decision on the merits, and thus there had not been a substantial investment of federal judicial resources in the case as a whole at the time of the reference of the pendent claim to the single judge. Cf. United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130 (1966), holding that pendent state claims should be dismissed if the constitutional claim is dismissed before trial.
It is true that the pendent claim in this case is founded upon federal law, thus making the exercise of jurisdiction by a federal court less objectionable than if the claim arose under state law. But here, as Judge Hays points out, the federal claim seems more apt for initial resolution by the Department of Health, Education and Welfare, than by the courts. The two issues upon a resolution of which this claim turns — the practical effect of § 131-a and the proper construction of § 602(a) (23) of the Social Security Act — both are exceedingly complex. The briefs and arguments of the parties, and the varying judicial views they have elicited, have demonstrated the wisdom of allowing HEW, with its expertise in the operation of the AFDC program and its experience in reviewing the very technical provisions of state welfare laws, an initial opportunity to consider whether or not § 131-a is in compliance with § 602(a) (23).1 This is HEW’s responsibility under the Social Security Act, see 42 U.S.C.A. § 1316 (Supp.1969). I believe that the district court should have declined to exercise its jurisdiction, thus permitting HEW to determine the statutory claim asserted by plaintiffs, for the Department already had initiated review proceedings concerning § 131-a. The Department’s determination, it should be noted, will be reviewable in the courts at the instance of either the state, under 42 U.S.C. § 1316 (a) (3) (Supp.1969), or the plaintiffs under the Administrative Procedure Act.
While I agree with Judge Hays’ treatment of the jurisdictional issue raised under 28 U.S.C. § 1331, we differ somewhat with respect to the application of 28 U.S.C. § 1343(3) and (4). I do not find that the plaintiffs’ claim under § 602(a) (23) involves the redress of either “equal rights” or a “civil right” as those terms are used in § 1343. I do not believe that the claim, although one founded on a federal right, falls within the ambit of 28 U.S.C. § 1983, for it lacks the constitutional overtones that have been present in all the welfare cases cited by the plaintiffs which have been sustained under that section. But even if a broad reading of § 1983 is accepted it cannot change the nature of the plaintiffs’ claim for the purposes of § 1343. On its face it is clear that § 602(a) (23) has nothing to do with “equal rights,” and it also cannot be said to involve a “civil right” in view of the circumstances which gave rise to the enactment of § 1343(4) in 1957. See U.S.Code Cong. & Adm.News, 85th Cong. (1957), pp. 1966, 1976, H.R.Rep.No. 291.
Since I do not feel that the federal courts are the appropriate forum for the initial resolution of plaintiffs’ statutory claim, I do not reach the merits of that claim. At the same time, I should add that Judge Feinberg’s view of the merits does not persuade me.
. In King v. Smith, 392 U.S. 309, 88 S.Ct. 2128 (1968), a case much relied on by plaintiffs, HEW had already given notice to the state that its regulation did not conform to the requirements of federal law. 392 U.S. 326 n. 23, 88 S.Ct. 2128. Thus the challenge to the regulation made in the King suit was ripe for resolution . by the courts.