1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-29-1997

Davis v. Phila Housing Auth

Precedential or Non-Precedential:

Docket 96-1679

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Recommended Citation

"Davis v. Phila Housing Auth" (1997). 1997 Decisions. Paper 177.

http://digitalcommons.law.villanova.edu/thirdcircuit_1997/177
iled July 29, 1997 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 96-1679 

JONATHAN DAVIS, A MINOR, BY HIS PARENT AND 

NATURAL GUARDIAN, WENDY DAVIS; WENDY DAVIS, 

INDIVIDUALLY AND IN HER OWN RIGHT, 

Appellants 

v. 

PHILADELPHIA HOUSING AUTHORITY; MIRIAM L. SHAW, 

Appellees 

ON APPEAL FROM THE 

UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

(D.C. Civil No. 96-01665) 

Argued: April 15, 1997 

Before: SCIRICA, COWEN, and NYGAARD, Circuit Judges. 

(Opinion Filed July 29, 1997) 

Robert Savoy, Esq. (Argued) 

Suite 301 

3 Neshaminy Interplex 

Trevose, PA 19503 

Counsel for Appellants 
Denise J. Baker, Esq. (Argued) 

Philadelphia Housing Authority 

2012 Chestnut Street 

Philadelphia, PA 19103 

Counsel for Appellees 

OPINION OF THE COURT 

NYGAARD, Circuit Judge. 

Jonathan Davis, a minor, and his mother and legal 

guardian, Wendy Davis, appeal the dismissal of Counts I 

through III of their complaint asserting claims against the 

Philadelphia Housing Authority under three separate

theories of liability. The Davises argue that the district 

court erred by concluding they lacked prudential standing 

to pursue their claims because their rights were not within 

the "zone of interests" intended to be protected by Congress 

under the Lead-Based Paint Poisoning Prevention Act, 42 

U.S.C. § 4821 et seq. ("Lead Act"). We agree and will reverse 

the order of the district court. 

I. 

Beginning in approximately July 1993, the Davises 

rented an apartment from Miriam Shaw. While living in the 

apartment, Jonathan Davis was exposed to peeling and 

chipping lead-based paint which caused him to suffer lead 

poisoning and severe, permanent injury. As a result of 

Jonathan's poisoning, Wendy Davis incurred medical 

expenses and allegedly experienced mental distress.

Before the Davises rented the apartment, it had been 

inhabited by a woman with a child under the age of seven. 

During that time, the apartment was part of a low-income 

rental program entitled Section 8.1 The Section 8 program 

is administered by the Housing Authority within the City of 

_________________________________________________________________ 

1. In its brief, the Housing Authority concedes that Miriam Shaw 

participated as a landlord in the Section 8 program from the beginning 

of 1986 through sometime in 1992. 

 2 
Philadelphia and subsidizes the rents of low-income tenants 

within the private housing market. Section 8 housing 

assistance is provided by the federal government and 

authorized by federal legislation enacted, inter alia, "to 

assist the several States and their political subdivisions to 

remedy the unsafe and unsanitary housing conditions and 

the acute shortage of decent, safe, and sanitary dwellings 

for families of lower income. . . ." 42 U.S.C. § 1437. To 

obtain the housing assistance funding, the Housing 

Authority enters into an Annual Contributions Contract 

with the United States Department of Housing and Urban 

Development. 42 U.S.C. § 1437f. 

Under the Lead Act and its implementing regulations, all 

existing housing which receives housing assistance 

payments under a program administered by HUD, or 

otherwise receives more than $5,000 in project-based 

assistance under a federal housing program, is subject to 

lead inspection and abatement procedures. 42 U.S.C.

§ 4822; 24 C.F.R. § 882.109(i); 24 C.F.R. § 35.24. These 

procedures are intended "to eliminate as far as practicable 

the hazards of lead-based paint poisoning" with respect to 

the covered housing. Id. It is clear that the Section 8 

program administered by the Housing Authority falls under 

the requirements of the Lead Act. It is equally clear that, 

under the Lead Act and its implementing regulations, the 

Housing Authority, as a condition of receiving federal 

funding for low-income housing assistance, has a duty to 

inspect Section 8 apartments for hazards resulting from 

lead-based paint and to ensure that any such hazards are 

eliminated as far as practicable. 42 U.S.C. § 4822(a)(1); 24 

C.F.R. § 882.109(i); 24 C.F.R. § 35.24(4). 

Following Jonathan's injuries, the Davises filed a civil 

action, alleging federal and state law causes of action 

against both the Housing Authority and Miriam Shaw.

Counts I through III of the complaint asserted claims 

against the Housing Authority under three separate 

theories of liability: (1) 42 U.S.C. § 1983; (2) liability to third 

party beneficiaries for breach of contract; and (3) direct 

private rights of action.2 In response, the Housing Authority 

_________________________________________________________________ 

2. The Davises did not challenge the dismissal of Count IV of their 

complaint (state law negligence claim) before the district court and do 

not raise the issue before us. Accordingly, we review only the dismissal 

of Counts I through III of the complaint. 

 3 
filed a motion to dismiss the claims against it, arguing that 

the Davises lacked prudential standing to assert their 

claims because their rights were not within the "zone of 

interests" intended to be protected by the Lead Act. 

The district court agreed and held that the Davises did 

not have standing to assert their claims against the 

Housing Authority. The court reasoned that "[b]ecause 

Plaintiffs are not participants in the Section 8 housing 

assistance program, their interests are not consistent with 

the purpose implicit in the statute at issue. . . . Plaintiffs do 

not have standing to pursue the claims at issue due to 

their lack of Section 8 status." Davis v. Philadelphia Hous.

Auth., No. 96-1665, 1996 WL 377189, at *3 (E.D. Pa. July

3, 1996). The court then dismissed Counts I-IV of the 

complaint.3 

II. 

At the outset, we note the limited scope of the issue we 

are asked to review; namely, whether the district court 

erred by dismissing the Davis's claims for lack of standing.4 

This issue is analytically distinct from the related question 

of whether the Lead Act provides Section 8 participants or 

their successor tenants with either an express or implied 

cause of action against the Housing Authority for an alleged 

breach of its duties to inspect for lead-based hazards and 

to ensure the removal of such hazards in apartment units 

which are, or at some time were, part of the Section 8 

program. In Bowman v. Wilson, 672 F.2d 1145, 1151 n.10 

(3d Cir. 1982), we explicitly noted the distinction between a 

dismissal of a claim for lack of standing based on a failure 

to satisfy the zone of interests test and a dismissal for 

failure to state a cause of action. There we stated: 

When the question is whether any plaintiffs are entitled 

to relief under a statute which does not expressly 

_________________________________________________________________ 

3. The Davis's state law claims against Miriam Shaw were dismissed by 

a separate order. 

4. We exercise plenary review. UPS Worldwide Forwarding, Inc. v. United

States Postal Service, 66 F.3d 621, 624 (3d Cir. 1995) (citations omitted), 

cert. denied, 116 S.Ct. 1261. 

 4 
provide the relief which is sought, the question is

properly framed as whether a cause of action can be

implied. The court must in that case decide whether a 

newly-fashioned remedial structure should be made 

available to a class of litigants not expressly entitled to 

relief under the statute. 

In contrast, when there already exists a cause of action 

prescribing a particular remedy for a defined class of 

persons and the question is simply whether a 

particular plaintiff is also entitled to that relief, the 

question is properly addressed as one of standing. In 

such a case, the inquiry focuses on whether the 

plaintiff is the proper person to press the claim. 

Id. at 1151 n.10 (citations omitted). In the present action, 

the district court dismissed the Davis's claims against the 

Housing Authority solely on its conclusion that the Davises 

did not have standing because their interests "are not 

consistent with the purposes implicit in the statute at 

issue." Davis, 1996 WL 377189, at *3. Accordingly, we need 

not reach the separate question of whether the Lead Act 

provides the Davises, as successor tenants, with a cause of 

action against the Housing Authority for its alleged breach 

of duties. 

III. 

Turning squarely to the issue of standing, it is 

undisputed that the Davises were not participants in the 

Section 8 program at the time they rented the apartment 

from Miriam Shaw. It is also undisputed, however, that the 

prior tenants in the apartment were, and therefore during 

that period the Housing Authority was obligated to perform 

inspection duties and to ensure that abatement procedures 

took place pursuant to the Lead Act and its implementing 

regulations. These facts present us with the central 

question we must address: whether successor tenants, who 

move into an apartment that is no longer part of a federal 

housing program yet are injured as the result of an alleged 

breach of duty that occurred while the apartment was part 

of the program, are arguably within the class of persons 

that Congress intended to benefit under the federal statute 

 5 
at issue. Put another way, are the Davis's rights arguably 

within the "zone of interests" intended to be protected by 

Congress under the Lead Act? We conclude that they are 

and hence, that the district court erred by dismissing the 

Davis's claims against the Housing Authority based on a 

lack of standing.5 

A. 

The Supreme Court has established three elements 

necessary to satisfy "the irreducible constitutional 

minimum of standing": 

First, the plaintiff must have suffered an "injury in 

fact" -- an invasion of a legally protected interest which 

is (a) concrete and particularized, and (b) actual or 

imminent, not conjectural or hypothetical. Second, 

there must be a causal connection between the injury 

and the conduct complained of . . . . Third, it must be 

_________________________________________________________________ 

5. The district court distinguished between the Davises asserting their 

claims as "successor tenants" and asserting their claims as "non-Section 

8 tenants." While it is unclear from the court's opinion what relevant 

difference it believed this distinction captured, we endorse its distinction 

because we believe there is an important difference between the two 

terms based on the facts of this case. 

Asserting their claims as "successor tenants" to a previous Section 8 

tenant means that the Davises were arguably entitled to a reasonable 

expectation that the Housing Authority had performed its inspection 

duties and ensured that abatement procedures had been undertaken as 

mandated under the Lead Act since the apartment had previously been 

part of a federal housing assistance program. In contrast, not every 

"non-Section 8 tenant" could reasonably claim the same expectation. For 

example, it is hard to imagine that a "non-Section 8 tenant" who moves 

into a building that has never been part of a federal housing program 

could assert a claim for breach of duty against the Housing Authority 

under the Lead Act when there was never an obligation on the part of 

the Housing Authority to inspect and to ensure the abatement of the 

apartment in the first place. As such, we are persuaded that it is more 

reasonable for "successor tenants" to a Section 8 tenant, like the 

Davises, to claim that their rights fall within the zone of interests covered 

by the statutory requirements imposed on the Housing Authority under 

the Lead Act than it is for generic, "non-Section 8 tenants" to make the 

same claim. 

 6 
likely, as opposed to merely speculative, that the injury 

will be redressed by a favorable decision. 

United States v. Hays, 115 S. Ct. 2431, 2435 (1995) 

(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560- 

61, 112 S. Ct. 2130, 2136 (1992)); accord Stehney v. Perry, 

101 F.3d 925, 930 (3d Cir. 1996). Here, there is no dispute 

that these constitutional standing requirements are met. 

The Davis's claims allege: (1) a concrete harm that has 

already occurred; (2) caused by the Housing Authority's 

breach of duty to inspect and to ensure abatement; (3) that 

is redressible by monetary damages to offset medical 

expenses and mental distress incurred as the result of the 

harm caused.6 

In addition to the constitutional standing requirements, 

federal courts have developed prudential standing 

considerations "that are part of judicial self-government." 

UPS Worldwide, 66 F.3d at 626 (citation omitted). These 

considerations require that 

(1) a litigant assert his [or her] own legal interests 

rather than those of third parties, (2) courts refrain 

from adjudicating abstract questions of wide public

significance which amount to generalized grievances, 

and (3) a litigant demonstrate that her interests are 

arguably within the zone of interests intended to be 

protected by the statute, rule or constitutional 

provision on which the claim is based. 

Wheeler v. Travelers Ins. Co., 22 F.3d 534, 538 (3d Cir. 

1994) (internal citations and quotations omitted); accord

Stehney, 101 F.3d at 930; UPS Worldwide, 66 F.3d at 626. 

The purpose of these prudential standing requirements is 

_________________________________________________________________ 

6. In its brief, the Housing Authority half-heartedly argues that the 

Davis's claims are inadequate to satisfy the minimums for constitutional 

standing because the complaint fails to specify a request for money 

damages aside from attorney's fees. The clear intent of the complaint, 

however, is to seek monetary damages for actual injuries suffered. In 

view of Fed.R.Civ.P. 8(f) which provides that "[a]ll pleadings shall be so 

construed as to do substantial justice," the complaint appears to 

sufficiently allege the necessary elements for Article III standing. See, 

e.g., Budinsky v. Commonwealth of Penn. Dept. Env. Resources, 819 F.2d 

418, 421 (3d Cir. 1987). 

 7 
"to avoid deciding questions of broad social import where 

no individual rights would be vindicated and to limit access 

to the federal courts to those litigants best suited to assert 

a particular claim." Wheeler, 22 F.3d at 538 (citations 

omitted). Here, it is clear that the Davis's claims meet the 

first two prudential standing requirements: the Davises are 

asserting their own interests and are claiming violations of 

concrete statutory and regulatory rights. See Stehney, 101 

F.3d at 931. Thus, the remaining question is whether the 

Davis's interests are arguably within the "zone of interests" 

intended to be protected by the Lead Act and its 

implementing regulations. 

B. 

The Supreme Court first formulated the zone of interests 

test in Association of Data Processing Serv. Orgs., Inc. v.

Camp, 397 U.S. 150, 153, 90 S. Ct. 827, 829-30 (1970). In 

Data Processing, sellers of data processing services 

challenged a Comptroller of the Currency ruling that 

permitted national banks to offer data processing services 

to their customers. The plaintiffs contested the ruling as 

contrary to a statute barring bank service corporations 

from engaging in "any activity other than the performance 

of bank services for banks." Id. at 155, 90 S. Ct. at 831 

(citation omitted). Holding that the plaintiffs had standing, 

the Court explained the zone of interests test as follows: 

"[W]hether the interest sought to be protected by the 

complainant is arguably within the zone of interests to be 

protected or regulated by the statute or constitutional 

guarantee in question." Id. at 153, 90 S.Ct. at 830. 

Subsequently, in Clarke v. Securities Indus. Ass'n., 479 

U.S. 388, 107 S. Ct. 750 (1987), the Supreme Court 

provided further guidance as to the contours of the zone of 

interests test. In Clarke, the Court held that a trade 

association of securities brokers had standing to challenge 

a decision by the Comptroller that national banks could 

operate discount brokerage services in locations outside of 

their home states. Id. at 394-403, 107 S. Ct. at 754-59. 

Analyzing the zone of interests test, the Court explained 

that "[t]he essential inquiry is whether Congress intended 

for [a particular] class [of plaintiffs] to be relied upon to 

 8 
challenge agency disregard of the law." Id. at 399, 107 S. 

Ct. at 757 (citations and internal quotations omitted). The 

Court then proceeded to state: 

In cases where the plaintiff is not itself the subject of 

the contested regulatory action, the [zone of interests] 

test denies a right of review if the plaintiff's interests 

are so marginally related to or inconsistent with the 

purposes implicit in the statute that it cannot 

reasonably be assumed that Congress intended to 

permit the suit. The test is not meant to be especially

demanding; in particular, there need be no indication of

congressional purpose to benefit the would-be plaintiff.

Id. at 399-400, 107 S. Ct. at 757 (citations omitted) 

(emphasis added).7 

Most recently, in Bennett v. Spear, the Supreme Court 

revisited the zone of interests test in the context of 

determining whether two Oregon irrigation districts, which 

had competing economic and other interests in water from 

the Klamath Irrigation Project, had standing to seek judicial 

review of a "Biological Opinion" issued by the Fish and 

Wildlife Service. 117 S. Ct. at 1159-60 (1997). The districts 

challenged the Biological Opinion under both the citizensuit provision of the Endangered Species Act and the APA. 

Id. at 1159. In their complaint, the districts alleged that the 

restrictions on water delivery recommended by the 

_________________________________________________________________ 

7. The zone of interests test is most often described in terms of standing 

to challenge regulatory or agency actions because the principal cases in 

which the test has been applied are those involving claims brought 

under § 702 of the Administrative Procedures Act. Nonetheless, in Clarke

the Court explicitly acknowledged that variations of the zone of interests 

test were applicable in other contexts and that the Court had itself 

previously listed the zone of interests inquiry among general prudential 

considerations bearing on standing. 479 U.S. at 400 n.16, 107 S. Ct. at 

757 n.16. Most recently, the Court has reaffirmed that the test applies 

to suits not involving review of federal administrative action and that 

"the breadth of the zone of interests varies according to the provisions of 

law at issue, so that what comes within the zone of interests of a statute 

for purposes of obtaining judicial review of administrative action under 

the generous review provisions of the APA may not do so for other 

purposes." Bennett v. Spear, 117 S. Ct. 1154, 1161 (1997) (citations and 

internal quotations omitted). 

 9 
Biological Opinion would "adversely affect plaintiffs by 

substantially reducing the quantity of available irrigation 

water" used by the districts. Id. at 1160. The Court of 

Appeals affirmed the District Court's dismissal of the 

complaint for lack of jurisdiction, reasoning that "only 

plaintiffs who allege an interest in the preservation of 

endangered species fall within the zone of interests 

protected by the ESA." Id. (quoting Bennett v. Plenert, 63 

F.3d 915, 919 (9th Cir. 1995)). The Court reversed, holding 

that the broad language of the EPA's citizen-suit provision 

stating that "any person may commence a civil suit," 

negated the zone-of interests test and expanded standing 

under the EPA to non-environmentalists like the petitioners 

in the instant action. Bennett, 117 S. Ct. at 1162-63. 

Significantly, the Court also held that the districts had 

standing to seek judicial review of the Biological Opinion 

under the APA because their economic interests were

within the zone of interests that section 7 of the ESA, 16 

U.S.C. § 1536, was intended to protect. Id. at 1167-68. 

In reaching its decision, the Court reviewed its 

jurisprudence regarding the zone of interests test and 

reaffirmed its determination that the test was applicable to 

suits not involving review of federal administrative action. 

Id. at 1161. The Court further emphasized that the breadth 

of the zone of interests test varied according to the 

provisions of law at issue. Id. Moreover, the Court specified 

that "[w]hether a plaintiff's interest is`arguably . . . 

protected . . . by the statute' within the meaning of the zone 

of interests test is to be determined not by reference to the 

overall purpose of the Act in question . . . but by reference 

to the particular provision of law upon which the plaintiff 

relies." Id. at 1167. 

Significantly, nothing in the Bennett opinion, or its 

analysis of the zone of interests test therein, indicates that 

the Court has retreated from its assertion in Clarke that the 

zone of interests test is "not meant to be especially 

demanding." Clarke, 479 U.S. at 399, 107 S. Ct. at 757.8 

_________________________________________________________________ 

8. Indeed, the furthest step the Court has ever taken to specifically limit 

the breadth of the "zone of interests" test in the APA context occurred in 

Air Courier Conference v. American Postal Workers Union, 498 U.S. 517, 

 10 
C. 

We have applied the zone of interests test consistent with 

the Supreme Court's jurisprudence. For example, in 

Schering Corp. v. Food and Drug Admin., 51 F.3d 390 (3d 

Cir.), cert. denied, 116 S.Ct. 274 (1995), we considered 

whether a competing drug manufacturer concerned about 

losing profits had standing to maintain an action against 

the FDA under the Drug Price Competition and Patent Term 

Restoration Act of 1984. Although the manufacturer was 

not the direct subject of the regulatory action it sought to 

challenge, we were persuaded that the manufacturer's 

competitive interests were consistent with the dual

congressional purposes of the Act: (1) aiding generic drug 

competition; and (2) preserving the safety of commercial 

drugs. Schering Corp., 51 F.3d at 395-96. Significantly, in 

determining that the manufacturer had standing to bring 

its action against the FDA, we described the zone of 

interests test as follows: 

When, as here, the plaintiff is not itself subject to the 

challenged agency action, the zone of interests test 

denies a right of review if the plaintiff's interests are 

only marginally related to the purpose of the statute. 

The test, however, is not so stringent that it requires the

would-be plaintiff to be specifically targeted by

Congress as a beneficiary of the statute.

_________________________________________________________________ 

530, 111 S. Ct. 913, 921 (1991), where the Court held that there must 

be an "integral relationship" between the statutory provisions plaintiffs 

claim have been violated and the provisions under which plaintiffs claim 

standing. This "integral relationship" requirement, however, only 

necessitates that "the plaintiff must establish that the injury he 

complains of . . . falls within the `zone of interests' sought to be protected 

by the statutory provision whose violation forms the legal basis for his

complaint." Bennett, 117 S.Ct. at 1167 (quoting Lujan v. National Wildlife

Fed'n, 497 U.S. 871, 883, 110 S. Ct. 3177, 3186 (1990)).

Importantly, this circuit has expressly held that the Air Courier

decision does not establish a "strict zone of interests test contrary to 

previous Supreme Court precedent, such as Clarke . . . ." UPS

Worldwide, 66 F.3d at 630 n.11. 

 11 
Id. at 395 (citations omitted) (emphasis added). We thus 

indicated that the zone of interests test is not to be applied 

"stringently" in order to deny standing. 

We also endorsed a "liberal" application of the zone of 

interests test in UPS Worldwide, where we considered the 

question of whether a private parcel service had standing to 

challenge the International Customized Mail (ICM) service 

offered by the U.S. Post Office. The private competitor 

alleged that the service violated the Postal Reorganization 

Act, which regulated postal and other rates for mail 

transported between the United States and other countries. 

We concluded that the prerequisites of standing had been 

met, reasoning that an "integral relationship" existed 

among the relevant statutes relied upon by the private 

carrier and that "the history of the Postal Service

demonstrates that Congress understood that statutes

setting postal rates were inextricably linked with those 

governing the postal monopoly." Id. at 630-31. 

Importantly, in the UPS Worldwide opinion we devoted 

significant attention to the standards underlying the zone of 

interests test. We first traced the development of the test 

through the Supreme Court's decisions in Data Processing

and Clarke. 66 F.3d at 628-29. We next noted that the Air

Courier decision, which added the "integral relationship" 

requirement to the zone of interests test, had suggested a 

somewhat stricter test. Id. at 629. We then concluded that 

the Air Courier decision had done nothing to change the 

underlying nature of the zone of interests test, opining that 

the decision had "merely held that a recodification of an 

entire title of the United States Code, covering hundreds of 

statutory provisions developed over the course of two 

centuries, did not constitute one `statute' within the 

meaning of the zone of interests test." Id. at 630 n.11. 

Distinguishing Air Courier in this manner, we proceeded to 

reaffirm that plaintiffs need not be among the intended 

beneficiaries of the statute under which they are suing in 

order to satisfy the zone of interests test. Id. at 630 

(citations omitted). Our opinion also explicitly rejected the 

idea that the test was intended to be a strict one. Id. at 630 

n.11. In so doing, we again cited the Supreme Court's 

statement in Clarke that the zone of interests test "is not 

 12 
meant to be especially demanding." Id. (citing Clarke, 479 

U.S. at 399, 107 S. Ct. at 757). 

IV. 

This takes us to the central question before us: whether 

the Davises are asserting claims that arguably fall within 

the scope of interests intended to be protected by Congress 

when it enacted the Lead Act.9 The most relevant portion of 

the Lead Act to the this case is 42 U.S.C. § 4822 -- 

"Requirements for housing receiving Federal assistance." 

Subsection (a)(1) of § 4822 states in pertinent part: 

The Secretary of Housing and Urban Development . . . 

shall establish procedures to eliminate as far as 

practicable the hazards of lead based paint poisoning 

with respect to any existing housing which may 

present such hazards and which is covered by an 

application for mortgage insurance or housing 

assistance payments under a program administered by

the Secretary or otherwise receives more than $5,000 

in project-based assistance under a Federal Housing

program. 

Relying on this statutory language, the district court 

concluded that "[b]ecause Plaintiffs are not participants in 

the Section 8 housing assistance program, their interests 

are not consistent with the purposes implicit in the statute 

at issue." Davis, 1996 WL 377189, at *3. The district court, 

however, overlooked the legislative history of § 4822(a)(1) 

and interpreted the statutory provision at issue too 

narrowly for purposes of the zone of interests test. 

The present § 4822(a)(1) was added to the Lead Act as 

part of a group of amendments to the Act passed in 1973. 

As the legislative history explains, the amendments were 

_________________________________________________________________ 

9. It is clear that an "integral relationship" exists between the statutory 

provisions the Davises claim have been violated and the provisions under 

which they claim standing. Indeed, the Davises assert standing under 

the same statutory provisions that they claim have been violated -- 

under the Lead Act for their § 1983 claims, and under the United States 

Housing Act and the Lead Act for their private right of action and breach 

of contract claims. 

 13 

not intended to alter the principal purposes of the Lead Act 

which were, inter alia, "to eliminate childhood lead based 

paint poisoning by screening, and testing young children 

for high blood levels," and "to determine the most effective 

means for removing the hazards of lead poisoning in those 

residences that present a high risk to the health of young 

children." S. Rep. No. 93-130 (1973), reprinted in 1973 
U.S.C.C.A.N. 2403, 2404. Instead, the amendments were 

intended to "ensure that fundamental improvements 

[would] be developed in lead poisoning programs," and to 

provide the federal agencies responsible for these programs 

with increased appropriations to implement and coordinate 

the desired programs. 1973 U.S.C.C.A.N. at 2405-06.

More specifically, the Senate Report emphasized that the 

particular amendments related to federal housing, 

including the provisions of § 4822(a)(1), were influenced by 

the belief that "it does no good to hospitalize a child for lead 

sickness and after treatment, return him to the same 

conditions that caused the disease in the first place." Id. at 

2406. The Report also recognized that "once a child has 

suffered the damage caused by lead poisoning, he is quite 

likely to get sick again unless the lead paint poisoning 

hazard is eliminated in his home and environment." Id.

These observations in turn persuaded Congress to increase 

the authorization of funding "for programs to eliminate the 

hazards of lead paint based poisoning," as established 

under the terms of § 4822(a)(1). Significantly, the housing 

amendments, along with the other 1973 amendments, were 

passed with the following summary statement included as 

part of the Senate Report: 

In summary, the committee cannot overemphasize that

the Lead-Based Paint Poisoning Prevention Act has two 

primary purposes. First, the Act is designed to 

eliminate the hazards caused by existing lead-based

paint. At the same time the Act is intended to begin 

providing resources to support programs that will 

search out those youngsters already sickened by lead 

poisoning so that they may receive medical attention. If 

full scale programs can be inaugurated to accomplish 

the two goals, we will be well along the way to 

achieving a significant health objective. 

 14 
Lead-based paint poisoning manifests itself as a critical 

threat to millions of Americans, particularly young

children. And, as such, this malady is the direct result 

of an environmental pollutant. Since we have the 

technology to eliminate the pollutant and to halt the 

damaging effects of the disease the committee strongly 

supports measures to curb the spread of this disease. 

There is no question that we know how to protect 

America's children from lead-based paint poisoning.

The committee agrees that now we must begin to do 

that. 

1973 U.S.C.C.A.N. at 2411. 

The broad scope of both the Lead Act and the 1973 

amendments, and the Senate Report's focus on the need for 

the permanent elimination of hazards caused by lead-based 

paint, suggests that Congress intended more than just 

children living in housing presently receiving federal 

funding to reap the benefits of a lead-free residential 

environment. As the legislative history demonstrates, 

Congress understood that the permanent removal of leadbased paint hazards from the nation's housing stock was 

vital to ensure that children were not constantly exposed 

and reexposed to the harms associated with lead-based 

paint poisoning. 1973 U.S.C.C.A.N. at 2405-06. As such, it 

seems clear to us that by requiring HUD to establish 

procedures to eliminate lead-based hazards in residences 

receiving federal funding "as far as practicable," Congress 

intended the lead-based paint hazards to be permanently

removed, not abated for only that period of time during 

which the residence was part of federally funded housing 

program. From this perspective, it is arguable that

Congress expected all children who lived in a residence that 

was at one time subject to the lead hazard removal 

requirements of the Lead Act and § 4822(a)(1) to be

beneficiaries of the statutory scheme. 

Moreover, although the case law is sparse, a number of 

courts have held that tenants in federally subsidized 

residences possess cognizable rights under the Lead Act 

and that they may sue local housing authorities to enforce 

its provisions. See, e.g., Ashton v. Pierce, 716 F.2d 56, 66- 

67 (D.C. Cir.), as amended, 723 F.2d 70 (1983); German v.

 15 
Federal Home Loan Mortgage Corp., 885 F.Supp. 537, 577 

(S.D.N.Y.), as clarified, 896 F.Supp. 1385 (1995); Hurt v.

Philadelphia Hous. Auth., 806 F. Supp. 515, 525-26 

(E.D.Pa. 1992). Given that the primary benefit Congress 

intended these tenants to enjoy under the Lead Act was the 

permanent elimination of lead-based paint hazards, we are 

persuaded that tenants who come to live in these 

residences after the benefit has already supposedly 

accrued, (e.g., the lead hazard has been "eliminated as far 

as practicable"), could at least arguably be considered 

intended beneficiaries of the statutory and regulatory 

scheme imposed by the Lead Act and its implementing

regulations. Under this view, "successor tenants" like 

Jonathan Davis would fall squarely under the broad zone of 

interests that Congress intended to protect with the Lead 

Act and § 4822(a)(1) -- the rights of children to live in 

residences where lead-based paint hazards have been

"eliminated as far as practicable." 

Further, even if the Davises could not arguably be 

considered intended beneficiaries of the statutory scheme 

created under the Lead Act and § 4822(a)(1), they may still 

qualify under the zone of interests test. Under the zone of 

interests test there is no requirement that the Davises be 

among the intended beneficiaries of the statute under 

which they are suing in order to satisfy the test. See, e.g., 

UPS Worldwide, 66 F.3d at 630 (citations omitted); 

Schering, 51 F.3d at 395 (citations omitted). Indeed, there

are a number of factors that suggest to us that the Davises 

satisfy the zone of interests test notwithstanding the 

argument that they are not intended beneficiaries of the 

Lead Act or § 4822(a)(1). First, the Davises assert claims for 

damages that are closely related to the purposes of the 

Lead Act and § 4822(a)(1). See Clarke, 479 U.S. at 399, 107 

S. Ct. at 757 (plaintiff does not meet zone of interests test 

if his "interests are so marginally related to or inconsistent 

with the purposes implicit in the statute that it cannot 

reasonably be assumed that Congress intended to permit 

the suit."). In this respect, the Davises allege that Jonathan 

suffered permanent injuries from lead-based paint hazards 

that should have been discovered and abated at an earlier 

time. Since two of the primary purposes of the Lead Act 

and the 1973 amendments are to permanently eliminate 

 16 
lead-based paint hazards from the nation's housing and "to 

protect America's children from lead-based paint 

poisoning," there seems to be a close correlation between 

the interests of the Davises and the purposes intended to 

be served by these statutory provisions. 1973 U.S.C.C.A.N. 

at 2411. Second, granting the Davises standing to pursue 

their claims would not interfere with enforcement of the 

statutory and regulatory scheme created under the Lead 

Act. In fact, permitting these claims to go forward would 

only encourage greater enforcement of the inspection and 

abatement duties imposed on local public housing 

authorities under the Act. Finally, given that the zone of 

interests test is "not meant to be especially demanding," 

Clarke, 479 U.S. at 399, 107 S. Ct. at 757, it is difficult to 

conclude that the rights asserted by the Davises do not 

satisfy the liberal standards of the test. As noted above, the 

Davises are asserting claims closely related to the purposes 

and the statutory scheme of the Lead Act and there is no 

question that their specific individual rights, as opposed to 

generalized grievances, would be vindicated by permitting 

the suit to go forward. Collectively, these factors are clearly 

sufficient to satisfy the requirements of the zone of interests 

test. 

V. 

In summary, we believe the legislative history of the Lead 

Act and, more specifically, § 4822(a)(1), makes it clear that 

the Davis's rights were arguably within the zone of interests 

that Congress intended to protect under the statute. 

Moreover, even if the Davises cannot be considered 

intended beneficiaries of the statutory and regulatory 

scheme created under the Lead Act, they have alleged 

violations of rights that are closely related to the interests 

intended to be protected by the Lead Act and § 4822(a)(1), 

and hence, we conclude their claims are sufficient to satisfy 

the zone of interests test and to establish prudential 

standing. Accordingly, we will reverse and remand the 

cause to the district court for further proceedings

consistent with this opinion.10 

_________________________________________________________________ 

10. The Davises have also requested that we reinstate their pendant 

state law claims against Miriam Shaw which were dismissed pursuant to 

 17 
COWEN, Circuit Judge, dissenting: 

I respectfully dissent because I believe the majority has 

committed two errors in its analysis. First, it has

insufficiently recognized the distinction in standing 

jurisprudence between administrative review cases and 

private right of action cases, such as this one. Second, the 

majority has not adequately considered the statutory 

language of both the Lead-Based Paint Poisoning Prevention 

Act ("LPPPA"), 42 U.S.C. § 4822(a)(1), and the Residential 

Lead-Based Paint Hazard Reduction Act of 1992 ("Title X"), 

42 U.S.C. §§ 4851 et seq. Read together, the language of 

these statutes demonstrates that Congress intended that 

the LPPPA would not benefit the Davises. While the 

majority correctly observes that one asserting standing 

need not show that Congress intended to benefit him, I 

believe that when Congress has expressly indicated its 

intent not to benefit a particular plaintiff, the standing 

inquiry is at an end. I discuss these points in turn. 

I.

As the majority notes, the question for determination is 

" `whether the interest sought to be protected by the 

[Davises] is arguably within the zone of interests to be 

protected or regulated by the statute . . . in question.' " 

Bennett v. Spear, ___ U.S. ___, #6D 6D6D#, 117 S.Ct. 1154, 1161 

(1997) (quoting Association of Data Processing Serv. Orgs. v.

Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 830 (1970)) 

(alterations added); see Majority slip op. at 18. The majority 

makes much of the statement by the Court in Clarke v.

Securities Indus. Ass'n, 479 U.S. 388, 399, 107 S.Ct. 750, 

757 (1987), that "[t]he test is not meant to be especially 

_________________________________________________________________ 

a separate order of the district court dated July 24, 1996. After reviewing 

the district court's order, we are uncertain as to whether the court 

dismissed these claims because it determined that it lacked jurisdiction 

after having dismissed the Davis's federal claims against the Housing 

Authority or rather because the Davises chose not to pursue their claims 

against Miriam Shaw. Accordingly, on remand the district court should 

reexamine its dismissal of the pendant state law claims in light of our 

holding that the Davises have standing to pursue their federal claims 

against the Housing Authority. 

 18 
demanding." The majority emphasizes this passage from 

Clarke, see Majority slip op. at 9, and repeats it no less 

than three times, see id. at 10, 12-13, 17. 

Importantly, Clarke, from which the "not . . . especially 

demanding" language derives, was a case in which the 

plaintiff sought review of federal administrative action, 

specifically a ruling by the Comptroller of Currency. See

Clarke, 479 U.S. at 390, 107 S.Ct. at 752. Indeed, every 

opinion used by the majority to guide it in its application of 

the zone-of-interests analysis was an administrative review 

case. See Bennett, ___ U.S. at #6D6D 6D#, 117 S.Ct. at 1158 

(challenge to ruling by Fish and Wildlife Service); Air Courier

Conference of America v. American Postal Workers Union, 

498 U.S. 517, 519-20, 111 S.Ct. 913, 915-16 (1991) 

(challenge to promulgation of regulations by U.S. Postal 

Service); Data Processing, 397 U.S. at 151, 90 S.Ct. at 829 

(action challenging ruling by Comptroller of Currency); UPS

Worldwide Forwarding, Inc. v. United States Postal Serv., 66 

F.3d 621, 623 (3d Cir. 1995) (challenge to promulgation of 

regulations by U.S. Postal Service), cert. denied, ___ U.S. 

___, 116 S.Ct. 1261 (1996); Schering Corp. v. Food and Drug

Admin., 51 F.3d 390, 391-92 (3d Cir.) (action challenging

FDA approval of drug), cert. denied, #6D 6D6D# U.S. ___, 116 S.Ct. 

274 (1995). 

This case, by stark contrast, is not an administrative 

review case. The Davises assert that they have a private 

right of action against the PHA pursuant to § 1983 and the 

LPPPA. As some commentators have recognized, the 

Supreme Court has strongly implied that "plaintiffs in 

[private right of action] cases have to meet a higher 

threshold test in showing that judicial protection of their 

interests is intended by the statute in question." William A. 

Fletcher, The Structure of Standing, 98 Y ALE L.J. 221, 237 

n.84 (1988). Indeed, the unanimous Supreme Court 

recently reiterated the important idea, stemming from 

Clarke, that "what comes within the zone of interests of a 

statute for purposes of obtaining judicial review of 

administrative action under the ` " `generous review 

provisions' " ' of the APA [Administrative Procedures Act] 

may not do so for other purposes." Bennett, ___ U.S. at ___, 

117 S.Ct. at 1161 (quoting Clarke, 479 U.S. at 400 n.16, 

 19 
107 S.Ct. at 757 n.16 (quoting Data Processing, 397 U.S. at 

156, 90 S.Ct. at 831)); see also Clarke, 479 U.S. at 400 

n.16, 107 S.Ct. at 757 n.16. ("While inquiries into

reviewability or prudential standing in other contexts may 

bear some resemblance to a `zone of interest' inquiry under 

the APA, it is not a test of universal application."). By 

contrast to its emphasis on the "not . . . especially 

demanding" language, the majority relegates this important 

concept to a footnote. See Majority slip op. at 9 n.7. 

The two private right of action cases in which the 

Supreme Court has applied zone-of-interests analysis give 

only limited guidance. See Dennis v. Higgins, 498 U.S. 439, 

449, 111 S.Ct. 865, 872 (1991); Boston Stock Exchange v.

State Tax Comm'n, 429 U.S. 318, 320 n.3, 97 S.Ct. 599, 

602-03 n.3 (1977). In addition, I am unaware of, and the 

majority has not cited, any private right of action case from 

this Court offering any extensive zone-of-interest analysis. 

That is not to say that we have not applied the analysis in 

non-agency review situations. When we have done so,

however, the party whose standing was in question clearly 

satisfied the zone-of-interests test and we therefore declined 

to engage in any extensive analysis. See, e.g., In re Grand

Jury, 111 F.3d 1066, 1072 (3d Cir. 1997) ("The privacy 

interests the [intervenors] assert are certainly within the 

`zone of interests' that Title III [of the Omnibus Crime 

Control and Safe Streets Act of 1968] is intended to 

protect."); Stehney v. Perry, 101 F.3d 925, 931 (3d Cir. 

1996) ("[A]s the target of [National Security Agency] 

regulatory action, [plaintiff's] interests fall within the zone 

of interests protected by the constitutional and regulatory 

provisions on which her case is based."); Out Front Prods.,

Inc. v. Magid, 748 F.2d 166, 168 (3d Cir. 1984) ("[I]t is clear 

that businesses that are hindered from forming or from 

entering a new market come within the zone of interests 

protected by the antitrust laws . . . ."); American College of

Obstetricians and Gynecologists v. Thornburgh, 737 F.2d 

283, 303 n.21 (3d Cir. 1984) ("[I]ncreased cost [of

insurance] caused by a [statutory] provision directed at 

[plaintiff] . . . places her within the zone of interests of the 

regulation"), aff'd, 476 U.S. 747, 106 S.Ct. 2169 (1986). 

 20 
The Clarke Court did give some guidance as to the 

appropriate application of the zone-of-interests test in a 

private right of action case. It wrote: 

The difference made by the APA can be readily seen by 

comparing the "zone of interest" [jurisprudence] with 

cases in which a private right of action under a statute 

is asserted in conditions that make the APA 

inapplicable. See, e.g., Cort v. Ash, 422 U.S. 66, 95 

S.Ct. 2080, 45 L.Ed.2d 26 (1975); Cannon v. University

of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 

560 (1979). 

Id. at 400 n.16, 107 S.Ct. at 758 n.16; see Fletcher, supra, 

at 237 n.84. The reference to Cort and Cannon is somewhat 

cryptic. The issue in those cases was whether a particular 

statute granted anyone the right to relief, while in this case, 

the issue is, assuming arguendo that someone is entitled to 

relief, whether the Davises are within that class of 

individuals. As we have explained, the former question goes 

to whether a cause of action exists (i.e., a question going to 

the merits) while the latter is a question of standing. See

Bowman v. Wilson, 672 F.2d 1145, 1151 n.10 (3d Cir. 

1982); Majority slip op. at 4-5. But see David P. Currie, 

Misunderstanding Standing, 1981 SUP. CT. REV. 41, 43 

(arguing that the two issues are identical); Fletcher, supra, 

at 236-37 (same). 

In any event, I will not further attempt to articulate the 

zone-of-interest analysis to be applied in "cases in which a 

private right of action under a statute is asserted in 

conditions that make the APA inapplicable." Clarke, 479 

U.S. at 400 n.16, 107 S.Ct. at 758 n.16. Perhaps the 

difference in approach is largely inarticulable except to say 

that the test in a private right of action case is more 

stringent. Further guidance from the Supreme Court on 

this topic would, of course, be helpful. Suffice it to say that 

the majority imposes a test that is "not . . . especially 

demanding" in a context where a more demanding test is 

appropriate.1 

_________________________________________________________________ 

1. The prudential standing requirements "are`founded in concern about 

the proper -- and properly limited -- role of the courts in a democratic 

 21 
II.

The second error committed by the majority is its reliance 

on the legislative history of the LPPPA to the exclusion of 

the language of both the LPPPA and Title X. This language 

demonstrates Congress's intent that individuals in the 

Davises' position not be benefited by the LPPPA. The 

Supreme Court has written that it is not necessary that 

"there be [any] indication of congressional purpose to 

benefit the would-be plaintiff " in order for that plaintiff to 

meet the zone-of-interests test. Clarke, 479 U.S. at 399- 

400, 107 S.Ct. at 757. We have reiterated this view. See

Schering, 51 F.3d at 395. However, a plaintiff does not meet 

the zone-of-interests requirement if his "interests are so 

marginally related to or inconsistent with the purposes 

implicit in the statute that it cannot reasonably be assumed 

that Congress intended to permit the suit." Clarke, 479 U.S. 

at 399, 107 S.Ct. at 757 (emphasis added). In other words, 

while lack of congressional intent to benefit a particular 

plaintiff will not be fatal to his claim of standing, a 

demonstration of congressional intent not to benefit him 

will be. 

In order to answer the zone-of-interests question, it is 

crucial that we examine the language of "the statutory 

provision whose violation forms the legal basis for [the] 

complaint." Bennett, ___ U.S. at ___, 117 S.Ct. at 1167 

(emphasis omitted). As the majority notes, 42 U.S.C. 

§ 4822(a)(1) provides, in part: 

_________________________________________________________________ 

society." Bennett v. Spear, ___ U.S. ___, ___, 117 S.Ct. 1154, 1161 (1997) 

(quoting Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205 

(1975)). I concede that, given this concern, it is somewhat 

counterintuitive that plaintiffs seeking to enforce a private right of action 

should be subject to a more stringent zone-of-interests test than those 

plaintiffs seeking review of administrative agency action. One would 

assume that a plaintiff in the latter type of case, having the opportunity 

to challenge agency action through the political branches of government, 

would be subject to the more stringent requirement. Nonetheless, we are 

bound by language in Supreme Court precedent indicating that a more 

stringent zone-of-interests test is applicable in non-agency review cases. 

See Bennett, ___ U.S. at ___, 117 S.Ct. at 1161; Clarke v. Securities

Indus. Ass'n, 479 U.S. 388, 400 n.16, 107 S.Ct. 750, 758 n.16 (1987)." 

 22 
The Secretary of Housing and Urban Development . . . 

shall establish procedures to eliminate as far as 

practicable the hazards of lead based paint poisoning 

with respect to any existing housing which may 

present such hazards and which is covered by an

application for mortgage insurance or housing

assistance payments under a program administered by

the Secretary or otherwise receives more than $5000 in

project-based assistance under a federal housing

program. 

(emphasis added). 

I will assume that the majority is correct in concluding 

that this language, standing alone, does not demonstrate 

Congress's intent to protect only participants in the section 

8 housing assistance program. However, this language does 

not stand alone. It must be read together with other 

relevant language in the statutory scheme that Congress 

has established. In discerning the meaning of the particular 

provision under which the Davises sue, we are free to 

"consider any provision that helps us to understand

Congress' overall purposes." Clarke, 479 U.S. at 401, 107 

S.Ct. at 758; see also id. at 396-97, 107 S.Ct. at 755 

(noting that Data Processing Court relied on one statute to 

find plaintiffs suing under different statute had standing). 

Totally absent from the majority's discussion is any 

mention of Title X. Title X was enacted in 1992 pursuant to 

Congress's findings that low level lead poisoning, commonly 

caused by ingesting lead-based paint, was a problem of 

national significance, affecting as many as 3 million 

children under the age of six. See 42 U.S.C. § 4851(1), (4). 

Congress found that lead-based paint hazards 

predominated in housing built before 1980, and that as 

many as 3.8 million American homes contained these 

hazards. See 42 U.S.C. § 4851(3), (5). 

Significantly, Congress did not limit the scope of Title X 

to housing having some connection to the federal 

government. Rather, unlike the LPPPA, the statute seeks "to 

eliminate lead-based paint hazards in all housing." 42 

U.S.C. § 4851a(1) (emphasis added); see Jane Schukoske, 

The Evolving Paradigm of Laws on Lead-Based Paint: From

 23 
Code Violation to Environmental Hazard, 45 S.C. L. REV. 

511, 545 (1994); Brett P. Barragate, Note, Time for

Legislative Action: Landlord Liability in Ohio for Lead

Poisoning of a Tenant, 43 CLEV. S T. L. REV. 529, 535-36 

(1995); Karla A. Francken, Comment, Lead-Based Paint

Poisoning Liability: Wisconsin Realtors, Residential Property

Sellers, and Landlords Beware, 77 MARQ. L. REV. 550, 581 

(1994); Jennifer Tiller, Recent Development, Easing Lead

Paint Laws: A Step in the Wrong Direction, 18 H ARV. ENVTL. 

L. REV. 265, 266-67 (1994). Perhaps more significantly, 

Congress justified the enactment of the more 

comprehensive Title X in the following terms: "[D]espite the 

enactment of laws in the early 1970's requiring the Federal 

Government to eliminate as far as practicable lead-based 

paint hazards in federally owned, assisted, and insured 

housing [i.e., the LPPPA], the Federal response to this 

national crisis remains severely limited." 42 U.S.C. 

§ 4851(7); see also Schukoske, supra, at 545; Tiller, supra, 

at 266-67. 

With regard to private housing, Title X has three major 

effects. First, it requires disclosure to prospective tenants 

and buyers of private housing of the hazards of lead-based 

paint in general, and of any known hazards regarding the 

property in question. See 42 U.S.C. § 4852d(a)(1), (3); 

Schukoske, supra, at 548-49; Barragate, supra, at 536; 

Francken, supra, at 580-83. Violation of the disclosure 

provisions results in civil liability. See 42 U.S.C. § 4852d(b); 

Barragate, supra, at 537; Francken, supra, at 583. Second, 

Title X "establishes a task force to make recommendations 

to [the Environmental Protection Agency] regarding the 

feasibility of assessment of lead-based paint hazards 

throughout the real estate finance system." Schukoske, 

supra, at 549; see 42 U.S.C. § 4852a(c)(1)-(3); Barragate, 

supra, at 536. The task force also has the responsibility of 

"recommend[ing] liability standards for landlords and 

lenders . . . and propos[ing] ways to increase availability of 

insurance coverage for contractors and alternative 

compensation systems for poisoning victims." Schukoske, 

supra, at 549-50; see 42 U.S.C. § 4852a(c)(6), (7). Finally, 

Title X provides for the development of standards for the 

abatement of lead-based paint in residential housing, but 

largely "leaves to the states the task of developing 

 24 
standards and statutory schemes on lead paint." 

Schukoske, supra, at 547-48; see 15 U.S.C. § 2682(c)(1). 

Examination of the LPPPA and Title X together 

demonstrates that this case is wholly unlike those cases 

upon which the majority relies. Each of those cases

involved "[p]laintiffs who suffer[ed] economic injury from 

unlawful competition" alleged to be prohibited by " `entry 

restricting' statutes.' " Schering, 51 F.3d at 395. 

Accordingly, in those cases, "the plaintiff's interests in 

protecting its competitive position . . . coincide[d] with the 

legislative purpose of imposing an entry restriction." Id.; see

Clarke, 479 U.S. at 403, 107 S.Ct. at 759; Data Processing, 

397 U.S. at 155-56, 90 S.Ct. at 831; UPS Worldwide, 66 

F.3d at 630-31. Thus, it was at least "arguable" that the 

furtherance of the plaintiff's interest in each of those cases 

was one beneficial side effect implicit in the legislation in 

question, even if it was not the purpose contemplated by 

Congress. 

Here, by contrast, the plaintiffs' interests do not

"coincide," but instead conflict, with the purpose of the 

statute pursuant to which they bring their action. Congress 

has enacted two statutes that, read together, demonstrate 

that Congress sought to protect the interests of those in 

plaintiffs' position by only one of those statutes. Yet the 

majority finds that the Davises have standing to assert 

rights under the other statutory provision. The majority 

thereby fails to heed the Supreme Court's instruction that 

the interests of a plaintiff asserting standing must not be 

"inconsistent with the purposes implicit in the statute." 

Clarke, 479 U.S. at 399, 107 S.Ct. at 757. 

This result is not only perplexing but is also at odds with 

our system of separation of powers and our tradition of 

judicial restraint. Congress, through the give-and-take of 

the political process that resulted in the enactment of the 

LPPPA and Title X, has created a framework that delicately 

balances the competing interests of those exposed to the 

hazards of lead-based paint and those who have the power 

to abate or eliminate those hazards. True, Title X might not 

protect residents of private housing to the same extent that 

the LPPPA protects residents of federally-owned and

 25 
-assisted housing. However, that the Congress chose to 

strike a somewhat different balance in each context is none 

of our concern -- it is a policy choice that Congress was 

entitled to make. We are in no position to upset with an 

expansive view of the zone-of-interests test the delicate 

balance that Congress has wrought. That is precisely what 

the prudential standing requirements were designed to 

obviate. See Bennett, ___ U.S. at ___, 117 S.Ct. at 1161; In

re Grand Jury, 111 F.3d at 1072. 

III.

I agree with the majority on one crucial point: nothing in 

the Court's opinion should be construed to mean that the 

Davises have a cause of action against the PHA. See

Majority slip op. at 4-5. But see id. at 15-16 (citing cases 

that hold that tenants in federally-assisted housing may 

sue to enforce LPPPA as support for unrelated proposition 

that Davises possess standing). The majority merely holds 

that the Davises' interests are "arguably within the zone of 

interests sought to be protected by" the LPPPA. Data

Processing, 397 U.S. at 153, 90 S.Ct. at 830 (emphasis 

added). Should the PHA wish to file a motion to dismiss for 

failure to state a claim upon which relief can be granted 

pursuant to FED. R. CIV. P. 12(b)(6), the questions for the 

district court will become whether the Davises' interests are 

actually within that zone, see Chem Serv., Inc. v.

Environmental Monitoring Sys. Laboratory-Cincinnati , 12 

F.3d 1256, 1263 (3d Cir. 1993), and whether a private right 

of action lies pursuant to the LPPPA and § 1983 at all. 

IV.

Because I do not agree with the majority that the Davises' 

interests are even "arguably within the zone of interests" 

the LPPPA seeks to protect, I respectfully dissent.

A True Copy: 

Teste: 

Clerk of the United States Court of Appeals

for the Third Circuit

 26