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P r e c e de n t i al or N on-P r e c e de n t i al :

D ock e t 96-1679

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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 AppellantsDenise 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 Coun ts I through III of their complaint asserting claims aga inst the Philadelphia Housing Authority under three separate theories of liability. The Davises argue that the d istrict court erred by concluding they lacked prudential st anding to pursue their claims because their rights were no t 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 an d chipping lead-based paint which caused him to suffe r 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 bee n inhabited by a woman with a child under the age of seven. During that time, the apartment was part of a low-i ncome rental program entitled Section 8.1 The Section 8 p rogram is administered by the Housing Authority within the City of

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1. In its brief, the Housing Authority concedes tha t Miriam Shaw participated as a landlord in the Section 8 program from the beginning of 1986 through sometime in 1992.

2Philadelphia and subsidizes the rents of low-income tenants

within the private housing market. Section 8 housin g assistance is provided by the federal government an d authorized by federal legislation enacted, inter al ia , "to assist the several States and their political subdi visions to remedy the unsafe and unsanitary housing conditions and the acute shortage of decent, safe, and sanitary dw ellings
for families of lower income. . . ." 42 U.S.C. § 14 37. To obtain the housing assistance funding, the Housing Authority enters into an Annual Contributions Contr act with the United States Department of Housing and Ur ban 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-base d assistance under a federal housing program, is subj ect 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 pra cticable the hazards of lead-based paint poisoning" with res pect 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 cle ar that, under the Lead Act and its implementing regulations , the Housing Authority, as a condition of receiving fede ral funding for low-income housing assistance, has a du ty to inspect Section 8 apartments for hazards resulting from lead-based paint and to ensure that any such hazard s 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 ac tion against both the Housing Authority and Miriam Shaw. Counts I through III of the complaint asserted clai ms against the Housing Authority under three separate theories of liability: (1) 42 U.S.C. § 1983; (2) li ability to third party beneficiaries for breach of contract; and (3) direct private rights of action.2 In response, the Housing Authority

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2. The Davises did not challenge the dismissal of C ount IV of their complaint (state law negligence claim) before the d istrict court and do not raise the issue before us. Accordingly, we revi ew only the dismissal of Counts I through III of the complaint.

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

the Davises lacked prudential standing to assert th eir claims because their rights were not within the "zo ne 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 th e Housing Authority. The court reasoned that "[b]ecau se Plaintiffs are not participants in the Section 8 ho using assistance program, their interests are not consist ent 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. Philadelp hia Hous.

Auth. , No. 96-1665, 1996 WL 377189, at *3 (E.D. Pa. July 3, 1996). The court then dismissed Counts I-IV of t he complaint.3

II.

At the outset, we note the limited scope of the iss ue we are asked to review; namely, whether the district c ourt erred by dismissing the Davis's claims for lack of standing.4 This issue is analytically distinct from the relate d question of whether the Lead Act provides Section 8 particip ants or their successor tenants with either an express or i mplied cause of action against the Housing Authority for a n alleged breach of its duties to inspect for lead-based haza rds and to ensure the removal of such hazards in apartment units which are, or at some time were, part of the Sectio n 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 dismiss al for
failure to state a cause of action. There we stated :

When the question is whether any plaintiffs are ent itled to relief under a statute which does not expressly

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

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

States Postal Service , 66 F.3d 621, 624 (3d Cir. 1995) (citations omitte d),
cert. denied , 116 S.Ct. 1261.

4provide 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 ent itled to

relief under the statute.

In contrast, when there already exists a cause of a ction prescribing a particular remedy for a defined class of persons and the question is simply whether a particular plaintiff is also entitled to that relie f, 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 a ction, the district court dismissed the Davis's claims aga inst 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 statut e 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 allege d breach
of duties.

III.

Turning squarely to the issue of standing, it is undisputed that the Davises were not participants i n the Section 8 program at the time they rented the apart ment from Miriam Shaw. It is also undisputed, however, t hat 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 proc edures took place pursuant to the Lead Act and its impleme nting regulations. These facts present us with the centra l 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 wa s part of the program, are arguably within the class of pe rsons that Congress intended to benefit under the federal statute

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

within the "zone of interests" intended to be prote cted by Congress under the Lead Act? We conclude that they are and hence, that the district court erred by dismiss ing 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 constitutiona l minimum of standing":

First, the plaintiff must have suffered an "injury in fact" -- an invasion of a legally protected interes t which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injur y and the conduct complained of . . . . Third, it mus t be

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5. The district court distinguished between the Dav ises asserting their claims as "successor tenants" and asserting their c laims as "non-Section 8 tenants." While it is unclear from the court's op inion what relevant difference it believed this distinction captured, w e 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 entitle d to a reasonable expectation that the Housing Authority had performe d its inspection duties and ensured that abatement procedures had be en undertaken as mandated under the Lead Act since the apartment had previously been part of a federal housing assistance program. In co ntrast, not every "non-Section 8 tenant" could reasonably claim the s ame 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 feder al housing program could assert a claim for breach of duty against the Housing Authority under the Lead Act when there was never an obligati on 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 persu aded that it is more

reasonable for "successor tenants" to a Section 8 t enant, like the Davises, to claim that their rights fall within the zone of interests covered by the statutory requirements imposed on the Housin g Authority under the Lead Act than it is for generic, "non-Section 8 tenants" to make the
same claim.

6likely, 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 Authori ty's breach of duty to inspect and to ensure abatement; (3) that is redressible by monetary damages to offset medica l expenses and mental distress incurred as the result of the

harm caused.6

In addition to the constitutional standing requirem ents, federal courts have developed prudential standing considerations "that are part of judicial self-gove rnment."
UPS Worldwide , 66 F.3d at 626 (citation omitted). These considerations require that

(1) a litigant assert his [or her] own legal intere sts rather than those of third parties, (2) courts refr ain from adjudicating abstract questions of wide public significance which amount to generalized grievances , and (3) a litigant demonstrate that her interests a re arguably within the zone of interests intended to b e 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 requiremen ts is

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6. In its brief, the Housing Authority half-hearted ly argues that the Davis's claims are inadequate to satisfy the minimu ms for constitutional standing because the complaint fails to specify a r equest for money damages aside from attorney's fees. The clear inten t of the complaint, however, is to seek monetary damages for actual inj uries suffered. In view of Fed.R.Civ.P. 8(f) which provides that "[a]l l pleadings shall be so construed as to do substantial justice," the compla int appears to sufficiently allege the necessary elements for Arti cle III standing. See , e.g. , Budinsky v. Commonwealth of Penn. Dept. Env. Reso urces , 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 lim it access to the federal courts to those litigants best suite d 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 Dav ises are asserting their own interests and are claiming viol ations of concrete statutory and regulatory rights. See Stehn ey , 101 F.3d at 931. Thus, the remaining question is whethe r 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 inte rests 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 tha t permitted national banks to offer data processing s ervices to their customers. The plaintiffs contested the ru ling as contrary to a statute barring bank service corporat ions from engaging in "any activity other than the perfo rmance 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 f ollows: "[W]hether the interest sought to be protected by t he complainant is arguably within the zone of interest s to be protected or regulated by the statute or constituti onal 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 c hallenge a decision by the Comptroller that national banks c ould operate discount brokerage services in locations ou tside of

their home states. Id. at 394-403, 107 S. Ct. at 754-59. Analyzing the zone of interests test, the Court exp lained that "[t]he essential inquiry is whether Congress i ntended for [a particular] class [of plaintiffs] to be reli ed upon to

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

Ct. at 757 (citations and internal quotations omitt ed). The Court then proceeded to state:

In cases where the plaintiff is not itself the subj ect of the contested regulatory action, the [zone of inter ests] test denies a right of review if the plaintiff's in terests are so marginally related to or inconsistent with t he 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 especi ally demanding; in particular, there need be no indicati on of congressional purpose to benefit the would-be plain tiff.

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 see k 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 ci tizensuit provision of the Endangered Species Act and th e APA.

Id. at 1159. In their complaint, the districts alleged that the restrictions on water delivery recommended by the

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7. The zone of interests test is most often describ ed in terms of standing to challenge regulatory or agency actions because t he principal cases in which the test has been applied are those involving claims brought
under § 702 of the Administrative Procedures Act. N onetheless, in Clarke the Court explicitly acknowledged that variations o f the zone of interests test were applicable in other contexts and that the Court had itself previously listed the zone of interests inquiry amo ng 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 t hat the test applies to suits not involving review of federal administra tive action and that

"the breadth of the zone of interests varies accord ing 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 admini strative action under the generous review provisions of the APA may not d o so for other purposes." Bennett v. Spear , 117 S. Ct. 1154, 1161 (1997) (citations and internal quotations omitted).

9Biological Opinion would "adversely affect plaintif fs by

substantially reducing the quantity of available ir rigation 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 preservati on of endangered species fall within the zone of interest s 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 p rovision stating that "any person may commence a civil suit, " negated the zone-of interests test and expanded sta nding under the EPA to non-environmentalists like the pet itioners

in the instant action. Bennett , 117 S. Ct. at 1162-63. Significantly, the Court also held that the distric ts 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 appl icable to suits not involving review of federal administrativ e action.

Id. at 1161. The Court further emphasized that the bre adth of the zone of interests test varied according to t he 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 refere nce to the overall purpose of the Act in question . . . but by reference to the particular provision of law upon which the p laintiff

relies." Id. at 1167.

Significantly, nothing in the Bennett opinion, or its analysis of the zone of interests test therein, ind icates that

the Court has retreated from its assertion in Clark e that the zone of interests test is "not meant to be especial ly demanding." Clarke , 479 U.S. at 399, 107 S. Ct. at 757.8

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

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

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

10C.

We have applied the zone of interests test consiste nt 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 abo ut losing profits had standing to maintain an action a gainst 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 gener ic drug competition; and (2) preserving the safety of comme rcial drugs. Schering Corp. , 51 F.3d at 395-96. Significantly, in determining that the manufacturer had standing to b ring its action against the FDA, we described the zone o f
interests test as follows:

When, as here, the plaintiff is not itself subject to the challenged agency action, the zone of interests tes t denies a right of review if the plaintiff's interes ts are only marginally related to the purpose of the statu te. The test, however, is not so stringent that it requ ires the would-be plaintiff to be specifically targeted by Congress as a beneficiary of the statute.

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530, 111 S. Ct. 913, 921 (1991), where the Court he ld that there must be an "integral relationship" between the statutory provisions plaintiffs claim have been violated and the provisions under w hich plaintiffs claim standing. This "integral relationship" requirement, however, only necessitates that "the plaintiff must establish tha t the injury he complains of . . . falls within the `zone of intere sts' sought to be protected by the statutory provision whose violation forms th e legal basis for his complaint ." Bennett , 117 S.Ct. at 1167 (quoting Lujan v. National Wild life

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

Importantly, this circuit has expressly held that t he Air Courier

decision does not establish a "strict zone of inter ests test contrary to previous Supreme Court precedent, such as Clarke . . . ." UPS
Worldwide , 66 F.3d at 630 n.11.

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

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 zon e of
interests test in UPS Worldwide , where we considered the question of whether a private parcel service had st anding to challenge the International Customized Mail (ICM) s ervice offered by the U.S. Post Office. The private compet itor alleged that the service violated the Postal Reorga nization Act, which regulated postal and other rates for mai l transported between the United States and other cou ntries. We concluded that the prerequisites of standing had been met, reasoning that an "integral relationship" exis ted among the relevant statutes relied upon by the priv ate 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 t he zone of interests test. We first traced the development of the test through the Supreme Court's decisions in Data Proce ssing

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 sugg ested 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, op ining that the decision had "merely held that a recodification of an entire title of the United States Code, covering hu ndreds of statutory provisions developed over the course of t wo 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 inte nded beneficiaries of the statute under which they are s uing in order to satisfy the zone of interests test. Id. at 630 (citations omitted). Our opinion also explicitly re jected 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

12meant 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: wh ether 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 po rtion of
the Lead Act to the this case is 42 U.S.C. § 4822 - - "Requirements for housing receiving Federal assista nce." Subsection (a)(1) of § 4822 states in pertinent par t:

The Secretary of Housing and Urban Development . .

. shall establish procedures to eliminate as far as practicable the hazards of lead based paint poisoni ng 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 $5,00 0 in project-based assistance under a Federal Housing

program.

Relying on this statutory language, the district co urt concluded that "[b]ecause Plaintiffs are not partic ipants in the Section 8 housing assistance program, their int erests are not consistent with the purposes implicit in th e statute
at issue." Davis , 1996 WL 377189, at *3. The district court, however, overlooked the legislative history of § 48 22(a)(1) and interpreted the statutory provision at issue to o 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

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9. It is clear that an "integral relationship" exis ts between the statutory provisions the Davises claim have been violated and the provisions under which they claim standing. Indeed, the Davises asse rt standing under the same statutory provisions that they claim have been violated -- under the Lead Act for their § 1983 claims, and und er the United States Housing Act and the Lead Act for their private righ t 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 chi ldren 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 o f young children." S. Rep. No. 93-130 (1973), reprinted in 1973U.S.C.C.A.N. 2403, 2404. Instead, the amendments we re

intended to "ensure that fundamental improvements [would] be developed in lead poisoning programs," a nd to provide the federal agencies responsible for these programs with increased appropriations to implement and coor dinate the desired programs. 1973 U.S.C.C.A.N. at 2405-06.

More specifically, the Senate Report emphasized tha t the particular amendments related to federal housing, including the provisions of § 4822(a)(1), were infl uenced by the belief that "it does no good to hospitalize a c hild for lead sickness and after treatment, return him to the sam e conditions that caused the disease in the first pla ce." 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 pois oning

hazard is eliminated in his home and environment." Id. These observations in turn persuaded Congress to in crease the authorization of funding "for programs to elimi nate the hazards of lead paint based poisoning," as establis hed under the terms of § 4822(a)(1). Significantly, the housing amendments, along with the other 1973 amendments, w ere passed with the following summary statement include d as part of the Senate Report:

In summary, the committee cannot overemphasize that the Lead-Based Paint Poisoning Prevention Act has t wo 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 begi n providing resources to support programs that will search out those youngsters already sickened by lea d poisoning so that they may receive medical attentio n. If full scale programs can be inaugurated to accomplis h the two goals, we will be well along the way to achieving a significant health objective.

14Lead-based paint poisoning manifests itself as a cr itical

threat to millions of Americans, particularly young children. And, as such, this malady is the direct r esult of an environmental pollutant. Since we have the technology to eliminate the pollutant and to halt t he damaging effects of the disease the committee stron gly supports measures to curb the spread of this diseas e. 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 ne ed for the permanent elimination of hazards caused by lead -based paint, suggests that Congress intended more than ju st children living in housing presently receiving federal funding to reap the benefits of a lead-free residen tial environment. As the legislative history demonstrate s, 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 e xposed and reexposed to the harms associated with lead-bas ed paint poisoning. 1973 U.S.C.C.A.N. at 2405-06. As s uch, it seems clear to us that by requiring HUD to establis h procedures to eliminate lead-based hazards in resid ences receiving federal funding "as far as practicable," Congress intended the lead-based paint hazards to be permane ntly removed, not abated for only that period of time du ring which the residence was part of federally funded ho using program. From this perspective, it is arguable that Congress expected all children who lived in a resid ence 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 subsidiz ed 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.

15Federal 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 Cong ress 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 consid ered intended beneficiaries of the statutory and regulat ory scheme imposed by the Lead Act and its implementing regulations. Under this view, "successor tenants" l ike Jonathan Davis would fall squarely under the broad zone of interests that Congress intended to protect with th e Lead Act and § 4822(a)(1) -- the rights of children to l ive 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 m ay still qualify under the zone of interests test. Under the zone of interests test there is no requirement that the Dav ises be among the intended beneficiaries of the statute und er 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 o f 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 inte rests test if his "interests are so marginally related to or i nconsistent with the purposes implicit in the statute that it c annot reasonably be assumed that Congress intended to per mit the suit."). In this respect, the Davises allege th at Jonathan suffered permanent injuries from lead-based paint h azards
that should have been discovered and abated at an e arlier time. Since two of the primary purposes of the Lead Act and the 1973 amendments are to permanently eliminat e

16lead-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 b etween the interests of the Davises and the purposes inten ded to be served by these statutory provisions. 1973 U.S.C .C.A.N. at 2411. Second, granting the Davises standing to p ursue their claims would not interfere with enforcement o f the statutory and regulatory scheme created under the L ead Act. In fact, permitting these claims to go forward would only encourage greater enforcement of the inspectio n 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 deman ding,"

Clarke , 479 U.S. at 399, 107 S. Ct. at 757, it is difficu lt 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 perm itting 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 t he 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 regulat ory scheme created under the Lead Act, they have allege d violations of rights that are closely related to th e 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 prudent ial standing. Accordingly, we will reverse and remand t he cause to the district court for further proceedings consistent with this opinion.10

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10. The Davises have also requested that we reinsta te their pendant state law claims against Miriam Shaw which were dis missed pursuant to

17COWEN, Circuit Judge , dissenting:

I respectfully dissent because I believe the majori ty has committed two errors in its analysis. First, it has insufficiently recognized the distinction in standi ng jurisprudence between administrative review cases a nd private right of action cases, such as this one. Se cond, the majority has not adequately considered the statutor y language of both the Lead-Based Paint Poisoning Pre vention Act ("LPPPA"), 42 U.S.C. § 4822(a)(1), and the Resi dential Lead-Based Paint Hazard Reduction Act of 1992 ("Tit le 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 stan ding 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 tur n.

I.

As the majority notes, the question for determinati on is " `whether the interest sought to be protected by t he [Davises] is arguably within the zone of interests to be protected or regulated by the statute . . . in ques tion.' " 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 esp ecially

___________________________________________________ ______________

a separate order of the district court dated July 2 4, 1996. After reviewing the district court's order, we are uncertain as to whether the court
dismissed these claims because it determined that i t lacked jurisdiction after having dismissed the Davis's federal claims a gainst the Housing Authority or rather because the Davises chose not t o pursue their claims against Miriam Shaw. Accordingly, on remand the dis trict court should reexamine its dismissal of the pendant state law cl aims in light of our holding that the Davises have standing to pursue th eir federal claims against the Housing Authority.

18demanding." The majority emphasizes this passage fr om

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 th e plaintiff sought review of federal administrative a ction, specifically a ruling by the Comptroller of Currenc y. See

Clarke , 479 U.S. at 390, 107 S.Ct. at 752. Indeed, every opinion used by the majority to guide it in its app lication of the zone-of-interests analysis was an administrativ e 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 Un ion , 498 U.S. 517, 519-20, 111 S.Ct. 913, 915-16 (1991) (challenge to promulgation of regulations by U.S. P ostal Service); Data Processing , 397 U.S. at 151, 90 S.Ct. at 829 (action challenging ruling by Comptroller of Curren cy); UPS Worldwide Forwarding, Inc. v. United States Postal Serv. , 66 F.3d 621, 623 (3d Cir. 1995) (challenge to promulga tion 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 administrat ive review case. The Davises assert that they have a pr ivate 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 high er 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 fr om Clarke , that "what comes within the zone of interests of a statute for purposes of obtaining judicial review o f administrative action under the ` " `generous revie w provisions' " ' of the APA [Administrative Procedur es 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,

19107 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 conte xts may bear some resemblance to a `zone of interest' inqui ry under the APA, it is not a test of universal application. "). By contrast to its emphasis on the "not . . . especial ly demanding" language, the majority relegates this im portant 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 analysi s give only limited guidance. See Dennis v. Higgins , 498 U.S. 439, 449, 111 S.Ct. 865, 872 (1991); Boston Stock Exchan ge 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, an d 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 ana lysis in non-agency review situations. When we have done so, however, the party whose standing was in question c learly
satisfied the zone-of-interests test and we therefo re 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 wi thin the `zone of interests' that Title III [of the Omnibus Crime Control and Safe Streets Act of 1968] is intended t o protect."); Stehney v. Perry , 101 F.3d 925, 931 (3d Cir. 1996) ("[A]s the target of [National Security Agenc y] regulatory action, [plaintiff's] interests fall wit hin the zone of interests protected by the constitutional and re gulatory 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 f rom entering a new market come within the zone of inter ests 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 direct ed at [plaintiff] . . . places her within the zone of int erests of the regulation"), aff'd , 476 U.S. 747, 106 S.Ct. 2169 (1986).

20The Clarke Court did give some guidance as to the

appropriate application of the zone-of-interests te st 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] wi th cases in which a private right of action under a st atute
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. Univers ity 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 par ticular 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 o f individuals. As we have explained, the former quest ion goes to whether a cause of action exists (i.e. , a question going to the merits) while the latter is a question of stand ing. 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); Fletch er, supra , at 236-37 (same).

In any event, I will not further attempt to articul ate the zone-of-interest analysis to be applied in "cases i n 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 th e difference in approach is largely inarticulable exc ept 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 . . . espe cially demanding" in a context where a more demanding test is appropriate.1

___________________________________________________ ______________

1. The prudential standing requirements "are`founde d in concern about the proper -- and properly limited -- role of the c ourts in a democratic

21II.

The second error committed by the majority is its r eliance on the legislative history of the LPPPA to the excl usion of the language of both the LPPPA and Title X. This la nguage demonstrates Congress's intent that individuals in the Davises' position not be benefited by the LPPPA. Th e 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 mee t 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 b e 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 par ticular plaintiff will not be fatal to his claim of standin g, 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 statut ory 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-inter ests 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 br anches of government, would be subject to the more stringent requirement. Nonetheless, we are bound by language in Supreme Court precedent indica ting that a more stringent zone-of-interests test is applicable in n on-agency review cases.

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

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

22The Secretary of Housing and Urban Development . .

.

shall establish procedures to eliminate as far as practicable the hazards of lead based paint poisoni ng 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 concl uding that this language, standing alone, does not demons trate Congress's intent to protect only participants in t he section 8 housing assistance program. However, this languag e does not stand alone. It must be read together with othe r relevant language in the statutory scheme that Cong ress has established. In discerning the meaning of the p articular 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 s tanding).

Totally absent from the majority's discussion is an y mention of Title X. Title X was enacted in 1992 pur suant 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 milli on 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 s eeks "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

23Code 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 Pain t Poisoning Liability: Wisconsin Realtors, Residentia l 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 significan tly, Congress justified the enactment of the more comprehensive Title X in the following terms: "[D]e spite 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 ins ured 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 m ajor effects. First, it requires disclosure to prospecti ve tenants and buyers of private housing of the hazards of lea d-based paint in general, and of any known hazards regardin g 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 recommend ations to [the Environmental Protection Agency] regarding the feasibility of assessment of lead-based paint hazar ds throughout the real estate finance system." Schukos ke,

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

supra , at 536. The task force also has the responsibilit y of "recommend[ing] liability standards for landlords a nd lenders . . . and propos[ing] ways to increase avai lability of insurance coverage for contractors and alternative compensation systems for poisoning victims." Schuko ske,

supra , at 549-50; see 42 U.S.C. § 4852a(c)(6), (7). Finally, Title X provides for the development of standards f or the abatement of lead-based paint in residential housin g, but largely "leaves to the states the task of developin g

24standards 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 inju ry from unlawful competition" alleged to be prohibited by " `entry restricting' statutes.' " Schering , 51 F.3d at 395. Accordingly, in those cases, "the plaintiff's inter ests in protecting its competitive position . . . coincide[ d] with the legislative purpose of imposing an entry restrictio n." Id. ; see Clarke , 479 U.S. at 403, 107 S.Ct. at 759; Data Processin g , 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" th at the furtherance of the plaintiff's interest in each of those cases was one beneficial side effect implicit in the legi slation in question, even if it was not the purpose contemplat ed 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, demon strate that Congress sought to protect the interests of th ose in plaintiffs' position by only one of those statutes. Yet the majority finds that the Davises have standing to as sert rights under the other statutory provision. The majority thereby fails to heed the Supreme Court's instructi on that the interests of a plaintiff asserting standing mus t not be "inconsistent with the purposes implicit in the sta tute."

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

This result is not only perplexing but is also at o dds with our system of separation of powers and our traditio n of judicial restraint. Congress, through the give-and- take of the political process that resulted in the enactmen t of the LPPPA and Title X, has created a framework that del icately balances the competing interests of those exposed t o 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 ex tent 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 Congre ss was entitled to make. We are in no position to upset wi th an expansive view of the zone-of-interests test the de licate balance that Congress has wrought. That is precisel y 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: not hing in the Court's opinion should be construed to mean tha t 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 housin g may sue to enforce LPPPA as support for unrelated propo sition 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. Dat a Processing , 397 U.S. at 153, 90 S.Ct. at 830 (emphasis added). Should the PHA wish to file a motion to dis miss for failure to state a claim upon which relief can be g ranted pursuant to FED. R. CIV. P. 12(b)(6), the questions for the
district court will become whether the Davises' int erests 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 priva te right of action lies pursuant to the LPPPA and § 1983 at all.

IV.

Because I do not agree with the majority that the D avises' interests are even "arguably within the zone of int erests" 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