Davis Ex Rel. Davis v. Philadelphia Housing Authority

Opinions of the United
1997 Decisions 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Precedential or Non-Precedential: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.
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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 citizen-
suit 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 lead-
based 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